Definition
Failure of justice has two distinct legal meanings that operate in different procedural contexts.
1. Absence of legal remedy. The defeat of a right or the loss of reparation for a wrong because no adequate legal remedy exists to enforce the one or redress the other. A party may possess a legitimate claim — a recognized right violated, a real injury suffered — yet find that the law provides no mechanism to vindicate it. That gap between the substantive wrong and the available remedy is the failure of justice in its formal sense.
2. Miscarriage of justice. A result reached in a judicial proceeding so palpably wrong — whether through procedural defect, erroneous ruling, or verdict contrary to the weight of evidence — that it shocks the moral sense and cannot stand as a legitimate exercise of the judicial function. In this usage, the failure lies not in the absence of a remedy but in the corruption or breakdown of the remedy actually applied.
These two meanings occupy different analytical spaces: the first is primarily a structural critique of the legal system's coverage gaps; the second is a ground for appellate relief, new trial motions, and post-conviction remedies.
Common Language
Modern common usage (Wiktionary): Not independently defined; commonly understood as a situation where the legal system has failed to achieve a just outcome, particularly in criminal cases where a guilty person goes free or an innocent person is convicted.
Historical common usage (Webster's 1913): Not separately defined; treated as a compound of common words carrying their ordinary meaning.
The gap matters. In ordinary speech, "failure of justice" almost always conjures the second meaning — the guilty acquitted, the innocent convicted, the corrupt official unpunished. In its older formal legal usage, however, the term describes something more structural and less dramatic: the systematic absence of a remedy, regardless of outcome. A researcher encountering the phrase in historical pleading treatises is likely reading the first meaning; a researcher encountering it in an appellate brief or motion for new trial is almost certainly reading the second.
Recognized Forms
/SUBTYPES
Failure of justice as absence of remedy. The classical formulation found in equity treatises and early common law sources. Equity jurisdiction was historically invoked to supply remedies where the common law left gaps — this sense of failure of justice was often the jurisdictional predicate for equitable relief.
Failure of justice as miscarriage. The modern procedural usage, appearing in statutes governing new trials, harmless error analysis, and appellate review standards. Many jurisdictions codify this standard: a conviction or judgment will not be disturbed for mere technical error unless the error resulted in a "failure of justice" or "miscarriage of justice."
Why It Matters in Research
The dual meaning creates a significant interpretive trap in historical sources. Pre-twentieth century treatises and digest entries for "failure of justice" are predominantly concerned with the first meaning — the structural absence of a remedy, closely tied to the equity/law divide and the development of extraordinary writs. A researcher tracing the term through Bouvier, early American digests, or English equity sources should assume this structural meaning unless context clearly indicates otherwise.
In modern sources — appellate opinions, criminal procedure statutes, post-conviction materials — the miscarriage-of-justice sense dominates almost entirely. The two meanings rarely appear together and are seldom cross-referenced, which means keyword searching across a mixed corpus will return results that require careful disambiguation.
The term also connects to harmless error doctrine. Many jurisdictions have harmonized the "failure of justice" standard with the harmless error inquiry: error warrants reversal only when it "resulted in a failure of justice," creating a direct statutory link between the two concepts. Researchers working with state criminal procedure codes should check whether "failure of justice" is a defined term of art in the relevant jurisdiction's statute or whether it operates as a judicial gloss.
In equity history, failure of justice served as a jurisdictional argument — it was the showing a litigant had to make to access chancery when law courts could not help. That historical function is largely dissolved into merged procedure systems, but it remains visible in cases litigated before the procedural reforms of the nineteenth and twentieth centuries.
Historical Dictionary Support
Black's and Bouvier's agree on the structural core: failure of justice denotes the defeat of a right or loss of reparation resulting from the lack or inadequacy of a legal remedy. Both anchor the term in the same concept.
Bouvier adds the colloquial dimension explicitly — acknowledging that the term is "also colloquially applied" to miscarriage of justice from a trial result that is palpably wrong. This is a notable editorial move: Bouvier flags the second meaning but marks it as colloquial, suggesting that as of his writing, the remedy-gap meaning was the primary legal usage and the miscarriage sense was still working its way into formal legal vocabulary.
Black's formulation is narrower and does not mention the miscarriage sense, which may reflect the edition's focus on formal doctrinal definition over usage-in-practice.
Neither source addresses the later statutory codification of "failure of justice" as a standard in harmless error and new trial jurisprudence — a development that would have occurred largely after the major editions of both dictionaries. Researchers relying solely on these historical definitions will miss the term's dominant modern procedural function.
Jurisdictional Note
American jurisdictions vary significantly in whether "failure of justice" appears as a statutory term of art in criminal procedure codes. Some states use it explicitly as the threshold for reversal on appeal or for granting new trials; others use "miscarriage of justice" or "substantial prejudice" as functional equivalents. Federal courts generally use the harmless error framework under Federal Rule of Criminal Procedure 52 without invoking the phrase directly.