A growing literature suggests that a criminal justice system derives practical value by generating societal perceptions of fair enforcement and adjudication. Specifically, perceptions of procedural fairness—resulting in perceptions of the system’s “legitimacy,” as the term is used—may promote systemic compliance with substantive law, cooperation with legal institutions and actors, and deference to even unfavorable outcomes. A separate literature suggests that a criminal justice system derives practical value by distributing criminal liability and punishment according to principles that track societal intuitions of justice. Specifically, perceptions of substantive justice—resulting in perceptions of the system’s “moral credibility”—would seem to promote compliance, cooperation, and deference. By contrast, a criminal justice system perceived to be procedurally unfair or substantively unjust may provoke resistance and subversion, and may lose its capacity to harness powerful social and normative influence.
This Article examines the shared aims and overlaps in operation and effect of these two criminal justice dynamics—the “legitimacy” that derives from fair adjudication and professional enforcement and the “moral credibility” that derives from just results—as well as the occasional potential for conflict. Specifically, in this Article, we aim to isolate and define the parameters of each dynamic, to compare and examine their similarities and differences, and to explore the settings in which the two run together or (more rarely) cross-wise. In this way, our overarching objective is to clear the air. To date, legal scholars have tended to invoke the two dynamics too casually, to ignore one but not the other, or to conflate or confuse the two. Thus, we intend to provide something of a primer: a useful and necessary analytic framework for ongoing debates into the advantages, limits, and dangers of moral credibility and legitimacy. But we do not stop there. We stake out tentative positions within these debates. That is, we endorse the prevailing view that moral credibility and legitimacy are promising—indeed, critical—systemic enterprises, and we make a number of tentative claims about when and to what degree a system ought to pursue or prioritize each enterprise. Particularly, we anticipate significant crime-control advantages for a system that enjoys perceptions of both moral credibility and legitimacy, but we conclude that—for empirical and theoretical reasons—moral credibility ought to be the principal objective in uncommon circumstances in which a system may effectively pursue only one.
