Justice and the Law, II

Aristotle himself would not accept that formulation. He argues in the first book of the Politics that the political is the highest form of good, because only in the polis are the goods possible that the family cannot achieve by itself. Thus, the political -- including especially the work of the legislator -- is at the heart of a just society. The law should govern us almost completely, he says in the Rhetoric:
Now, it is of great moment that well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges; and this for several reasons. First, to find one man, or a few men, who are sensible persons and capable of legislating and administering justice is easier than to find a large number. Next, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice and expediency. The weightiest reason of all is that the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of friendship or hatred or self-interest that they lose any clear vision of the truth and have their judgement obscured by considerations of personal pleasure or pain. In general, then, the judge should, we say, be allowed to decide as few things as possible. But questions as to whether something has happened or has not happened, will be or will not be, is or is not, must of necessity be left to the judge, since the lawgiver cannot foresee them.
Here we see the same concern at work identified in the previous piece: the law is about removing the influence of 'feelings of friendship or self-interest,' but we also see 'hatred' mentioned. Here we get the fist indication of where the problem of revenge enters into the law. Another source of injustice in the law is hatred for those against whom we seek revenge.

Notice that the way the formula works, however, we don't get the suggested benefit that the state can take over the vengeance business in a better or more just way. The state isn't supposed to execute revenge, according to Aristotle: the point of the state is to prevent revenge, not to execute it for us.

A Christian may find this idea appealing, because we are taught that revenge isn't the proper business of individuals or states: it is a divine prerogative alone. Yet the law doesn't encompass everything. What do we say about conflicts between states, or with non-state actors like al Qaeda who live in areas where our laws do not properly apply?

For that matter, what do we say in a secular state (like ours is supposed to be, according to many)? Revenge is a very natural human desire, and our most deeply felt accounts of justice are built around it. If a man rapes your daughter and kills her, nothing will seem just except that something horrible should be done to him in return. Once again, justice is the work of the intimate bonds. The only kind of thing that could seem just to us is vengeance. Anything else is a pale shadow of justice. Did we not say that justice is 'getting what you deserve'?

Well, we can say that we might all like to get something better than we deserve! Again, in a Christian context, this is possible to imagine: the wages of sin is death, but no matter how severe the sins, vengeance will be forgone by the One whose sole right it is. Here is a kind of justice that we might all find very appealing (found in the most intimate of bonds, as it happens: there is nothing more intimate than being, and in the context of this faith, it is only God's love that holds you in being at all).

Yet we know from experience that a society that attempts to be as forgiving as God does not achieve good results. The weak as well as the strong may benefit from having their sins forgiven, but the weak will suffer greatly if crimes are forgiven, and a Christian society is supposed to be a friend to the weak.

One answer I have often thought was a good one was -- at least in severe crimes -- to separate the functions of fact-finding and punishment. Aristotle proposes separating them because fact-finding has to be done in individual cases, whereas punishments can be set by a rule that is not open to hatred or desire for revenge. Yet justice lies in the intimate relations. Once the independent court has determined that a man is in fact guilty of having raped and murdered a family's daughter, why not give him over to them for punishment?

What we do instead is to deny them, the family, true justice. We spend a very great deal of time and money denying them this. We make ourselves into jailers and torturers, just so they may be denied it.

King Arthur is supposed to have said, after Morgan le Fay sent him the poisoned cloak, that if he had his way he would be revenged on her so all Christendom would speak of it. He was a king, and if the king and the land are one, all the more are the law and revenge. Perhaps the most just thing would be if everyone were a king or queen, just as every home is a castle.

20 comments:

MikeD said...

I think the key here is that government (or the state, if you prefer) cannot give true justice, but it does provide (at least in theory) unbiased justice. Now, I have made no secret that I am of a strongly libertarian bent, and that I believe that government that governs as little as possible is the least evil government. And that's got a lot to do with my experience with the "Big Green Machine" that is the US Army.

Even the best intentioned of actions by such a large bureaucracy grinds the individual to dust by the fact that it cannot give true justice as you put it. What is true justice for one individual cannot be exactly true justice for another. Surely someone who has (through no fault of their own) suffered a traumatic event and has diminished mental capacity and commits a crime cannot be held to the same standard as someone who has no such diminished capacity who coldly plots and orchestrates the same crime.

But yet, it is this very same weighing of mitigating circumstances that large organizations are terrible at. Large organizations prefer one size fits all solutions, because they allow "equal treatment for all". But as you said, true justice is being treated as you deserve, not as faceless person #247 deserves.

As for putting the dispensation of justice into the hands of the victim's family, I do not feel this is a workable solution either. If nothing else, because of the burdens this might place upon them. For example, let us say that someone murders the son of a preacher who absolutely believes that vengeance belongs to God alone. What if he considers 40 years in jail to be a fair sentence for the killer's crime, are we to put the burden of feeding and housing the killer on the victim's family? Or are you simply saying "let the victim's family determine the punishment?" If that is the case, what if he decides to release the killer (as he does not feel it is his right to stand in judgment)? Does this serve justice? He may feel that way, but what about society? Does society not have an interest in keeping a killer off the streets?

Justice as delivered by the state may not be perfect, but even for a libertarian like me, it is the least evil of all solutions possible.

Grim said...

For example, let us say that someone murders the son of a preacher who absolutely believes that vengeance belongs to God alone. What if he considers 40 years in jail to be a fair sentence for the killer's crime, are we to put the burden of feeding and housing the killer on the victim's family? Or are you simply saying "let the victim's family determine the punishment?" If that is the case, what if he decides to release the killer (as he does not feel it is his right to stand in judgment)? Does this serve justice?

Let us say that someone were to rape and kill my sister. Naturally, my family decides that I should devote myself to hunting this person down. As I arrive on the scene to administer justice, a third party -- in a black robe -- appears on the scene. "Stop!" he says to me. "I have decided that this man will go free of punishment."

My response will naturally be, "What right could you possibly have to substitute your judgment for ours?"

Now if that satisfies, how shall I (or any one, whether or not they are wearing a robe) decide to substitute our judgment for the parson's in your example? He may well send the killer on with a stern warning to sin no more. Most people won't, so society is in no way harmed because the general standard of punishment will be upheld. The pain and the loss was his; why should he not be free to be as merciful as a king?

Grim said...

By the way, there's an answer to the question, "'What right could you possibly have to substitute your judgment for ours?'" The judge can reasonably say that he has determined that the man should go free because of the truth, i.e., that the man is not guilty. On this point I agree with Aristotle: a dispassionate judge may be better at seeing that the facts are what they are, and not being swayed by a desire for revenge on someone into an injustice that would arise from misreading the facts.

But that is to the matter of whether the man is guilty. If he is guilty, it is not clear to me why the state's judgment should possibly be substituted for ours -- or ours for the parson's. It seems to me that he is the only one in your example who is positioned to know what it would take to satisfy.

Eric Blair said...

Because we're not in 6th century AD Germany and more, And even the Burgundian code had penalties written down for the thing you describe.

A great deal of this has already been worked out in the past, but everybody seems to want to reinvent the wheel, although sometimes when reading about the tit for tat gang violence that happens one gets the impression that there are still plenty of people that don't get it yet.

But back to your point, we, as a society, have placed our authority or permission or whatever in the office of that judge (and the rest of the legal system, I suppose) to handle that stuff on our behalf.

At least that's the way it is supposed to work. In fact I recently got to see this in action, up close and personal.

Grim said...

Which part? The part that's supposed to work?

If human nature doesn't change much -- and I don't think it does -- then there's a sense in which we're always in 6th century Germany. And everywhere else, potentially at least: we are always in Republican Rome, we are always in Nazi Germany.

The system we establish has its own power. It is as real, in its way, as the people who are related by the system.

Cass said...

A great deal of this has already been worked out in the past, but everybody seems to want to reinvent the wheel, although sometimes when reading about the tit for tat gang violence that happens one gets the impression that there are still plenty of people that don't get it yet.

Yes. Yes. Yes.

If he is guilty, it is not clear to me why the state's judgment should possibly be substituted for ours -- or ours for the parson's. It seems to me that he is the only one in your example who is positioned to know what it would take to satisfy.

This makes no sense, Grim. You often seem quite willing to allow vigilante "justice" (really, revenge) with no real consideration of how people get fired up and act rashly in the heat of the moment.

As Eric says, this has all been worked out over a great many years in a great many civilizations and you seem too willing to throw that all away without really understanding why so many nations and governments over the centuries have adopted such a system.

It makes a great deal of sense for a community to decide together what the penalties for various acts will be, and even more sense NOT to leave that up to people who may not be at all fair, good, capable of acting in good will, or who may be under the grip of strong emotion.

It's not that such a system is perfect. No system is perfect. But such a system is more likely to be fair than one in which self-interested persons get to act as judge and executioner.

Cass said...

All that is needed to show the flaws in your system is to imagine two sets of parents: one loving and one neglectful or even abusive.

A daughter is raped. The loving parents may well desire revenge and want to inflict great suffering on the rapist.

The uncaring family may be happy to set the rapist free with no punishment, or with only a slap on the wrist. It is not unknown for parents to offer up their own children TO a rapist.

By your rule, there is no uniformity whatsoever in the punishment of the very same act.

MikeD said...

He may well send the killer on with a stern warning to sin no more. Most people won't, so society is in no way harmed because the general standard of punishment will be upheld. The pain and the loss was his; why should he not be free to be as merciful as a king?

My point is, a conniving killer may plead that he has seen the error of his ways, beg forgiveness before God, and convince the parson that he will "go forth and sin no more." And if our kindly parson does so (in accordance with his beliefs) you say justice is served. But if our killer is a sociopathic monster preying on the faith of the kindly parson, he is now free to kill again. Indeed, it would be likely that such a person has killed before and escaped justice (many serial killers go undetected for years before their patterns form). So again, while our parson may act on his convictions and judge the killer to his satisfaction, again I ask, does society not have an interest here as well?

Cass said...

There is no justice (nor any rule of law) when penalties for crimes are essentially doled out at the whim of individuals.

Society *does* have an interest. That is why people and families form communities in the first place; they represent a sort of mutual defense pact formed for the purpose of protecting life, liberty, and property.

People who claim that things would be better if we just got rid of laws and kept people from forming communities and laws are essentially advocating the diminution of liberty, not the expansion of it.

Part of our freedom includes the freedom to join and associate and organize with others as we see fit.

Grim said...

You have Aristotle on your side here, Cass, so it's a plausible position. However, I don't find your objections that strong.

As Eric says, this has all been worked out over a great many years in a great many civilizations and you seem too willing to throw that all away....

Eric's example is more interesting than he lets on. The written law of the Burgundians was adopted at the time of the failure of the Roman empire, when the Romans found themselves coming under the Burgundian authority. Their king at the time adopted a written code in part to ease that transition. It wasn't that the written law was necessary for the Burgundian civilization, but that the older civilization with very-many written laws had failed.

So yes, it's been done many times before. It's been done several different ways. Sometimes systems like the ones I am advocating have outperformed law-and-court based systems like the ones you (and Aristotle) are advocating. As I have said before, I think our civilization (like late Rome's) is going to collapse, and a large part of the reason is the weight of all the sorts of laws and regulations it has brought to bear on all aspects of life. A lighter system of law might have lasted much longer.

It's not like there's a tried and true way that works. There are several things that have been tried. The question that interests me here is which one is in accord with reason and human nature. In the first section -- the one no one has commented on -- I gave an account of why this understanding seems better to me.

Society *does* have an interest. That is why people and families form communities in the first place; they represent a sort of mutual defense pact formed for the purpose of protecting life, liberty, and property.

Just so. But 'society' and 'government' are not the same thing. Government is only a small part of society. (This is the error being made by modern Democratic Party leaders, who argue things like 'government is the only thing we all belong to.')

You would be free to determine your own rules. You could join a society of those who believed in specific punishments for specific acts, and make clear that you would not ask for more (or less) than X if a member was robbed or harmed in some other specific way.

You could be a true Christian, and turn the other cheek. And it would be for real, not the way we have it today where you can pretend to 'forgive' because you know in your heart that the state will punish no matter what you do.

There's nothing incompatible between this system and the idea that groups should form to pursue a vision of the Good. Just the opposite -- groups, on this system, are much freer to do so according to their own true lights. In part, it's an answer to the problems being raised by the article I cited this weekend (under the complaint about serfdom).

Grim said...

So again, while our parson may act on his convictions and judge the killer to his satisfaction, again I ask, does society not have an interest here as well?

A possible answer to that, Mike, would be the old Icelandic (or Germanic, to stick with the Burgundian theme) concept of outlawry. What the society did at that time was to remove the protection of its laws from someone who habitually violated them. Without the state taking on the function of punishment, then, it could still answer your concern by giving members of society a free hand to act against a habitual troublemaker.

MikeD said...

A possible answer to that, Mike, would be the old Icelandic (or Germanic, to stick with the Burgundian theme) concept of outlawry.

But then, aren't you taking away that very agency of true justice you were granting to the parson? If he determines that he will let God judge the killer and asks for no further retribution, but the Thing (since we're going Icelandic here) declares him outlaw, does this not conflict? The parson is no longer the merciful king, as you put it, but is now just given first right of refusal on punishment, with the government (council, legislature, court, jury, however you frame it, it is a body of men set up to apply the law) having ultimate authority. And you even touch on this in your response to Cass. We're back in the situation that allows the parson to "pretend to 'forgive' because [he] know[s] in [his] heart that the state will punish no matter what [he] do[es]."

Grim said...

There's a danger that someone might take it on themselves to punish the outlaw for his past crimes, but the way you phrased it, the concern is his future crimes. (Protagoras says something similar in the dialogue that bears his name: that no decent state would punish people anyway, since punishing them now does not undo past crimes, save that we hope that the punishment may prevent future crimes.)

It seems to me to be a worthy distinction; maybe it is the distinction between vengeance, which worries Cassandra, and proper punishment.

Grim said...

By the way, Cass,

...you seem too willing to throw that all away without really understanding why so many nations and governments over the centuries have adopted such a system.

I think I have given an account of why so many nations and governments have adopted such a system: because some kind of such system is necessary to enable the higher-order benefits that come from cooperation at levels larger than families or small organizations. To argue that it is necessary is not to fail to grant it the proper due, nor to attempt to 'throw it away.' What I'm considering is how to build a better system, not how to build an anarchy.

In any case, I'm the last person you should suspect of being guilty of violating Chesterton's principle (or paradox) of the wall. Not only do I believe in that principle, but you surely know that I've spent more time than most trying to understand the history and the reasoning behind us. If I can't criticize the system, who could? Not many!

Eric Blair said...

Well, the Burgundians sort of wanted to be Romans, and IIRC, they got a chunk of the Western Empire in return for defending it, which didn't go the way either side thought it would I think.

And while the Burgundians may not have necessarily *needed* to have written down their laws, it seems to me that once they realized they could write down the laws, they did. Nevermind the fact that they were integrating Romans into their polity at the same time. The concept is just so useful, like money, that once people get a load of it, they'll do it.

But even in the Burgundian code (which is written in Latin) you find all these Roman terms: Optimates, Consiliarii, domestici, maiores domus nostrae, comites, as well as Roman coin names.

And of course one of the first provisions in the code is the price for weregeld (which is obviously a German term) and I think we all know what it is, but hey, even then, a price is paid instead of blood feud. And that is at the behest of the society.

Grim said...

There was a lot of cultural exchange between the Burgundians and the Romans who fell under their rule. They nevertheless ended up with two separate legal codes, at least at first, because a relatively easy way to pacify any Roman resistance to their authority was to guarantee the Roman law for Romans. As I understand it, the codification of the old Burgundian law was 'by the way' of this process of providing a kind of charter that guaranteed the ways the Romans could expect to be treated.

Generally weregeld can be refused; the point comes up in Beowulf, for example. Society, if it wishes to see the family accept it, must persuade them to do so. That was the service Hrothgar is supposed to have done for Beowulf's father.

But I think that, the various written codes aside, compensation payments were negotiated with the written values as a sort of guiding principle. Certainly that was true in Iceland, in Njal's Saga for example. It's how it's done still today in Iraq; we did a lot of it.

Grim said...

As an aside, Eric, here's a review of a book on WWI, which strikes me as possibly of interest to you.

raven said...

The reason people seek to impose revenge outside the law is simple. They no longer perceive the Law as acting in the general interests of the people.
Any individual decision from the court can be excused, whether it be lenient or excessive-but when the body of the people believe the Law is only acting in the interests of the "other", then they will seek their own justice.

Eric Blair said...

True enough that the code recognized two groups, Romans and Burgundians, but even the Romans pay the weregeld and to each other as well, if I understand it correctly.

I'm not sure I agree with the author of the book, (The Netherlands didn't fight in WWI, for example) but it is an interesting idea.

Grim said...

You probably understand the Roman law better than I do!

On the other hand, at least the classical law as I understand it is very compatible with the idea of ceding a lot of punitive authority to the (head of the) family. If you want to buttress the family, or other institutions besides the state, like other organic structures they tend to grow stronger when they bear more weight.