Once in a while I run across a quote by someone I am familiar with while doing a seemingly unrelated Google search. This one is from a professor who was interpreting Dr Thomas Sowell– a man whose work I greatly respect, but whose tone I cringe at. Anyway, in the current “judicial activism” conversation, I find this illuminating:
Justice means adherence to agreed upon rules the violation of which deranges the expectations of others and adversely changes their future conduct as they lose confidence in the general reliability of existing and future rules and agreements. Justice derives its importance from the need to preserve society through the provision of general principles. Sowell explains that men will suffer more by a breakdown of order than by some injustices. What is involved is a trade-off between individual justice and the social benefits of certainty. Judicial activism would derange the whole process. A better verdict may be reached in a specific case but at the cost of damaging the consistency and predictability of the law. There cannot be a law-abiding society if no one knows in advance what laws they are to obey but must wait for judges to create ex post facto legal rulings based on evolving standards rather than known rules. The losses of poorer judicial decisions are offset against the prospective guidance of known rules leading to fewer criminal law violations or needs for civil litigation. General stability of expectations and standards are more important than the particular benefits of wisdom and virtue. A judge should therefore apply the rules even if in the specific instance the known consequences will appear to be undesirable.
Law exists to preserve society. It follows that criminal justice is concerning with deterring crime, not with finely adjusting punishments to the individual. Sowell explains that law represents the evolved and codified experience of all men who have ever lived – it is the experience of the many, rather than the wisdom of the few.
While it is a sprawling analysis of Sowell, you can read it all here if that sort of thing interests you.