How Do the Courts Create Popular Legitimacy?: The Role of Establishing the Truth, Punishing Justly, and/or Acting Through Just Procedures

Abstract

When legal authorities evaluate the courts, their focus has traditionally been upon the degree to which the courts achieve two distinct objectives: establishing the truth and punishing justly. These two goals are not, of course, unrelated, since establishing the truth is often viewed as a precursor to determining just punishments. A first concern of the system is with using the courts to draw upon investigative reports and evidence presented during trials to establish the facts of the case, that is, to determine as well as possible what actually happened. These facts in turn address the second concern of the courts: justly punishing wrongdoing. Hence, establishing truth and achieving substantive justice in punishment are two goals of the courts and are central to their evaluation by legal authorities and scholars. To determine how well the courts achieve these objectives, scholars examine the frequency of erroneous verdicts and of punishments departing from objective standards of substantive justice.