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Published online by Cambridge University Press: 05 June 2012
LEGAL JUSTICE AS A BALANCE OF BENEFITS AND BURDENS
One widely held view of law's primary purpose is “to create and maintain the objective conditions of trust…that make it reasonable for citizens to trust one another even when they are strangers who lack the kind of personal relationship that can ground trust outside the law.” The general belief that no one will benefit through illegal conduct greatly contributes to such trust. For the criminal code, this means, in particular, that all law must
bring benefits (security, freedom) to all its citizens by imposing on them all the burdens of self-restraint involved in obeying the law. We can then say that a criminal, in breaking the law, takes an unfair advantage for herself over all those who obey the law. She accepts the benefits that flow from the law-abiding self-restraint of others but refuses to accept the burden of obeying the law herself.…She now deserves, as a matter of justice, to lose that unfair advantage, and punishment serves precisely to deprive her of it. By imposing an extra burden on her, it restores that fair balance of benefits and burdens that her crime disturbed.
A principal goal of the criminal law has hence always been to discourage private retaliation as a means of restoring the balance, argues John Gardner (following James Fitzjames Stephen). Providing personal security against disruption of this balance is a central objective of the social contract.
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