To the Editor:
Re “The Court’s Duty” (editorial, Aug. 19):
Justices Antonin Scalia and Clarence Thomas claim that a fair trial is all that is needed to execute a demonstrably innocent person. They confuse perfect with imperfect procedural justice.
When we have no concept of a fair outcome other than the outcome of a fair procedure, we have “perfect” procedural justice, illustrated by the outcome of spinning a fair roulette wheel.
In a criminal trial, a fair outcome is convicting all and only the guilty; its procedures are an imperfect way of producing that outcome. We cannot execute innocent people just because they had a fair trial.
Norman Daniels
Brewster, Mass., Aug. 19, 2009
The writer is a professor of ethics and population health at the Harvard School of Public Health.
Note from KBJ: I've read the opinions. Justices Scalia and Thomas aren't "confus[ing] perfect with imperfect procedural justice." They're not even talking about justice (or fairness). They're making legal arguments. If Professor Daniels had legal training, he would know that law is an autonomous institution. Moral arguments have no effect there, unless the law has adopted moral norms as its own (in which case they are legal norms, not moral norms). I'm not saying that the reasoning of Justices Scalia and Thomas is unassailable. Three other justices came to a different conclusion than they did as a matter of law. I'm saying that one can't attack their reasoning by bringing external moral norms (or distinctions) to bear on it. As a general rule, philosophers who lack legal training should not be taken seriously when they weigh in on legal matters (any more than lawyers who lack philosophical training should be taken seriously when they weigh in on philosophical matters). They obscure more than they illuminate.
Note 2 from KBJ: As proof that Professor Daniels didn't put much thought into this letter, he himself is confused about the nature of justice. He writes:
When we have no concept of a fair outcome other than the outcome of a fair procedure, we have “perfect” procedural justice. . . .
This is incorrect. When we have no concept of a fair outcome other than the outcome of a fair procedure, we have pure procedural justice. There are two types of impure procedural justice: perfect and imperfect. This handout of mine sorts things out; Professor Daniels should study it. (There will be a test.) By the way, it's ironic that Professor Daniels should be confused about procedural justice, because the distinctions being discussed in his letter (and in my handout) were initially set forth by his teacher, John Rawls.
Note 3 from KBJ: I'm willing to wager a dollar to a dime that Professor Daniels hasn't read the opinion of Justices Scalia and Thomas. He appears to have read the New York Times editorial opinion and nothing more. That's like basing one's belief about what some conservative said (or argued) on what Paul Krugman says the conservative said (or argued). Ah, the insular world of the academic. What was it that William F. Buckley said about Harvard professors?
Keith Burgess-Jackson, J.D., Ph.D. 