Legal system: Social justice
In the first part of examining psychological factors for our legal system of justice, we looked at individual factors. Now I will explore system/social factors.
There’s a lot of talk about social justice nowadays. Many groups wish to bring attention to how our social systems have built-in methods of inappropriate discrimination. This lens can also be used for the legal system.
Are we adversaries?
As a psychologist, one red flag for the legal system calls out to me immediately: the adversarial system. The People vs. [Insert Person/Organization]. Encouraging competition has its benefits, such as spurring on innovation. At the same time, it is designed not only for inequity, it directly encourages prejudice. How? For inequity, many people recognize that you get the innovative legal support that you can pay for. Sometimes this systemic inequity can improve social challenges, but mostly it exacerbates them. As the saying says, for those who have, more will be given.
How does it encourage prejudice? Adversarial systems create us-them paradigms. Prosecution – Defense. People for a policy – People against the policy. Generally, the ‘them’ is the defense. The defendant has been called out to battle, almost like ancient ostracism. When a group feels put upon through this system, they often end up feeling powerless or disenfranchised. This can happen when a group is singled out for prosecution again and again and again. It can also happen when a particular defendant or situation feels emblematic of a group’s struggles.
Scramble for power from those without
As with any system of maintaining power, the adversarial system naturally pits disenfranchised groups against one another in a struggle for justice. These forces were spotlighted for all to see in The People vs. OJ Simpson trial in the 1990s. Of course, none of the people directly involved were without power. Nevertheless, their individual plights reflected the struggle of many disenfranchised groups in different ways. The trial loudly made it clear how limited the justice system is. The People, i.e. the variety of communities being represented, were never all going to win, no matter what verdict.
The legal adversarial system continually brings disenfranchisement into view. More groups are aware of the limits placed on their power. These constraints are everywhere and take many different forms. Limits are part of the deal of a society. At the same time, our system has never placed them in a way many of us would deem fair.
Social justice cognitive fallacies
Psychologically, the adversarial system prompts us to think about these challenges as having winners and losers. We then naturally get stuck in all-or-nothing mindsets. We tie our hurt souls to this person or that court case; we’ve won, or we’ve lost. In court cases with broad impact, such as ones in higher appellate courts or the Supreme Court, the media makes use of this framing. Journalists ask, “who won in the court’s ruling?” For individuals directly affected by the case, this might be the most accurate take. But as a society, this is a cognitive fallacy. When we are looking at the social level, we must look at the context. Legal context is not just how a ruling helps or hurts specific group rights and needs. That is very important, but I would argue, secondary. The main ingredient is how we are working together to build a just society.
Social values: All of them
Social-legal challenges are connected to our values. Not just the ones you value, or I value, but all of our values. We all have them: even the people you call “them.” (see Strupp-Levitsky et al., 2020.) While we may not have the same distribution of values, if we can respect the value-motivations in each other, it changes the discussion. Instead of “have I won or have you?” we can ask, “in what ways is this helping and/or hindering us from making our communities better for all?” We need to balance the individual and the collective in this, which is not an easy task.
Summary: Legal system of justice at individual and societal levels
Where we draw the line in the balance between individual and social rights does not have an answer, or even answers. There are many, intersecting values at stake, and we are constantly redefining them. Not only is every situation different, many specific situations will not end up fair to all. Is there an alternative model to adversarial that would work better? I don’t know. But fortunately, many of the problems it creates are cognitively mediated: harmful actions informed by cognitive framing and bias. And mental processes can be readily tackled through awareness. If we are able to step back and address this as struggling together rather than an us-them knockout fight, we can all, in the bigger picture, win.