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.