The Legitimacy of Judicial Responses to Moral Panic: Perceived vs. Normative Legitimacy

Journal of Criminal Justice Ethics, 2018 Forthcoming

Hebrew University of Jerusalem Legal Research Paper No. 28

39 Pages Posted: 16 Aug 2018 Last revised: 12 Oct 2019

See all articles by Miriam Gur-Arye

Miriam Gur-Arye

Hebrew University of Jerusalem - Faculty of Law

Date Written: June 1, 2018

Abstract

In some instances, the criminal justice system is affected by moral panic; i.e., by an exaggerated societal reaction to an assumed threat to moral values. When influenced by moral panic, courts demonize defendants and aggravate punishments. Are such responses legitimate? The Article argues that as opposed to legitimate condemnation of criminal conduct, demonizing defendants ought never be legitimate. The legitimacy of aggravating punishment requires distinguishing between the sociological concept of legitimacy (“perceived legitimacy”) and the moral concept (“normative legitimacy”). Aggravation of punishment in response to moral panic might be perceived as legitimate since it expresses public perceptions as to the severity of the threat to a social value, even when these perceptions are exaggerated; however, punishments that are proportionate to such a perceived, exaggerated, threat to a social value are unjust and unfair, and therefore are normatively illegitimate. When the panic subsides, courts tend to return to lower levels of punishment. The subsidence of the panic enables one to realize that a gap between perceived and normative legitimacy has been created during the panic. Should and can the gap be bridged retroactively in order to gain full legitimacy? One way to bridge the gap is to grant clemency that will reduce the punishment of defendants whose sentences were exaggerated unduly during the panic. The article proposes a more radical mechanism that allows for sentence reevaluation in cases of moral panic.

Keywords: Moral Panic; Criminal justice system; Perceived legitimacy; normative legitimacy.

Suggested Citation

Gur Arye, Miriam, The Legitimacy of Judicial Responses to Moral Panic: Perceived vs. Normative Legitimacy (June 1, 2018). Journal of Criminal Justice Ethics, 2018 Forthcoming; Hebrew University of Jerusalem Legal Research Paper No. 28. Available at SSRN: https://ssrn.com/abstract=3233021

Miriam Gur Arye (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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