What makes a legal system fair or unfair? I am trying to narrow down to a few key points. Attempting to compare laws today to code of Hammurabi.

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Lorraine Caplan eNotes educator| Certified Educator

In my opinion, equality and due process are the most important elements of fairness in a legal system, and these are provided in the document that created our legal system, the Constitution and its Amendments. 

A system of law in which people perceive that they will not be deprived of "life, liberty, or the pursuit of happiness" without being treated equally is a system that works because everyone is subject to the same rules and sanctions, at least theoretically. People might not be happy with the consequences, but if everyone faces the same consequences, then there is a perception of fairness.

Due process is also central to the notion of fairness in the law.  What is due process?  Due process is the hoops government must jump through before they can take away your life, liberty, or pursuit of happiness. For example, you cannot be imprisoned or fined unless you have a trial, a knowledge of the charges against you, an attorney if you want one, the ability to call witnesses for you, the ability to confront and cross-examine witnesses against you, and so on.  No one can put you away or take your money without going through all of these steps and more.   Having due process built into our legal system provides us with the perception of fairness because it is meant to assure us that the government cannot act arbitrarily against us. 

As long as a society perceives that its legal system is fair, it will conform (mostly) to its requirements.  When a society begins to feel that the legal system is unfair, it is less likely to hold up its end of the social contract. 

ask996 eNotes educator| Certified Educator

While the United States of America has perhaps one of the most equitable and evolved legal systems of any country in the world, one cannot deny that it has its faults. I would have to agree that one of its flaws is that justice serves best those who can afford to pay for it.

1)Do public defenders come from high quality law backgrounds? They do their job to the best of their ability (we hope), but there is no doubt that someone with money could hire a better lawyer.

2)Someone charged with a serious crime will sit in jail if he or she does not have the money to get out. The richer suspect might be just as guilty (or innocent) in the long run, but they don't sit in jail as long.

3)The rich can draw their court cases on and on as long as they have the money to pay for lawyers and appeals. What options do the financially strapped have.

If the Hammurabi Code philosophises that no one is above the law, then this would prove contrary to the laws of the United States, as quite frequently the rich are above the law.

enotechris eNotes educator| Certified Educator

The purpose of government is to safeguard rights.  To safeguard them, laws are enacted.  Individuals possess rights, and may do whatever they wish as long as their actions do not intrude upon the rights of another individual.  Doing so breaks the law. When that occurs, proceedings begin to make amends for such transgressions.  The ideal system would be where no rights are ever violated; the next best would be that when rights are violated, justice is consistently served, without regard to socio-economic status, that all appear equally before the law.  The better we adhere to that code the more fair the system will be; as others have noted, even that ideal falls short when the wealthy can buy their way out.

The intent of the Code of Hammurabi was to standardize legal proceedings and establish a form of the Rule of Law.  No doubt, however, the wealthy bought their way out back then as well.

brettd eNotes educator| Certified Educator

Equality of the citizens before the law, while very difficult to actually accomplish, is a hallmark of a just legal system.  Without it, citizens lose respect for the legal process and view it as a way for government to maintain power or individuals and businesses to enrich themselves.  More specific elements include the right to hear the charges and to face your accusers, the right to legal counsel to represent you, and reasonable sentencing and punishments under the law.

drmonica eNotes educator| Certified Educator

Hammurabi’s Code, as I understand it, was a system of pure application of the law. The modern American legal system is based on principles of both law and equity. What makes the legal system unfair in the United States is that persons of high socioeconomic status are able to purchase their way out of punishments and consequences. Senator Ted Kennedy was a prime example of how a rich father can buy a son’s way out of the legal system.

Ashley Kannan eNotes educator| Certified Educator

The Hammurabi Code is one steeped in the idea of no individual is above the rule of law, that some precepts cannot be undone, even by kings.  This is an idea embedded in our democracy today, stressing equality within and before the law.  In the process, we can see that the drive for equality being an integral part of the definition of justice is a critical one.

jharris2012 | Student
What makes a legal system fair or unfair? Trying to narrow down to a few key points.

comparing laws today to code of Hammurabi

I can't see anything very fair in the laws of the US when for instance in California someone can get life in prison for stealing a loaf of bread.

dpbippus | Student

the fact of the matter is that Hammurabi's code of law is ridiculous. im glad i live in the U.S.

Being glad you live in the US means you've never been victumized by he very law you think protects you. I was sued in Federal court by a Fortune 500 company. The judge granted them emergency discovery, seizing our notes and records, our client list, even dayplanners. Then we had to endure 2 days of deposition, which is an unbelievable strain.

with our client list, they called or visited every client, questioning them as to conversations we had with them.

Still no trial, because they found nothing. Then they go into stall mode, getting postponments, etc.  All the while, our legal bills eat up our life savings and our business, under a cloud of suspicion due to the lawsuit, is dying on the vine. 9 months ago, we were a thriving small business. Big money used the court system to put us out of business. Great law system, if you already have deep pockets.  Not so great for average people.

kmeclean4you | Student

the fact of the matter is that Hammurabi's code of law is ridiculous. im glad i live in the U.S.

krishna-agrawala | Student

With the development of knowledge, technology and culture so many aspects of our society and life have changed. Laws and legal system is no exception. The Code of Hammurabi, or any other law of ancient time should not be judged on the basis of present day life and culture. To illustrate my point I will take an extreme example. The institution of marriage and family is something that is defined by culture. There was a time in prehistoric era when the concept of marriage or family had not developed. Obviously, it will not make sense to criticize any code of conduct prevalent at that time for having no provision dealing with these matters.

Having made my point about futility of comparing laws of different time, I will no concentrate on why laws are fair or unfair. I believe the following factors influence the fairness or otherwise of laws.

  1. The basic inability of any law, however just, to be implemented hundred percent effectively. This also includes the inability to be an effective deterrent - an important objective of law.
  2. A basic inability to know for sure what is right and what is right. The wisest people disagree on these matters.
  3. Existence of difference interest groups in society, that have conflicting interest. It is not possible to always reach a perfect balance between these conflicting forces.
  4. Changing perception of right and wrong with changing culture of the society.