I started writing this post as a decompressing rant about a hypothetical conversation I had with a friend. However, that’s not what this post ended up as. This post explores and explains nature and history of a few core concepts about understanding justice and the thoughts and beliefs of some of the greatest minds on the issue.
Before we jump into that, I’d like to present the conversation that fueled the desire to write this post. Mind you, unless the NSA would kindly send over their full transcript, this will be done by my oh-so-frail memory:
THINKER (me): Friend, I have a scenario I’ve been mulling around in my head for a while. Would’st thou impart thy knowledge and opinions upon my ever hungering crown?
FRIEND: Sure, so long as you stop talking like that.
THINKER: So it is written, so shall it be done. Okay, here’s the scenario. A man is convicted of murder. It’s proven that he did it. The evidence is irrefutable. However we have a scientifically accurate palm reading machine to peer into his future.
FRIEND: Aaaaand this is why I hate doing hypotheticals.
THINKER: Just hear me out. Okay, so we look into his future and not only do we see that he will never commit another crime again, but he will actually be the next Mother Theresa, Ghandi, Newton and Einstein all rolled up into one celestial burrito but only, and here’s the catch, so long as he’s not imprisoned. Should we let him go?
FRIEND: Nope. He committed murder and he needs to pay for that crime.
THINKER: But what is the point of Justice if not for the betterment of mankind? Isn’t the entire point of laws, courts and essentially the entire justice system to keep us safe and improve our lives?
FRIEND: But he has to pay for what he did. He committed a heinous crime and needs to own up to that.
THINKER: Alas, it seems I and thou have come to ye olde impasse!
FRIEND: Alright, we’re no longer friends.
Of course, we spoke at length about the concepts of crime deterrents for the rest of society and the victims of the crime including their right to feel vindicated, etc. but that brought an even deeper conversation about the difference between justice and revenge. Think about it. If someone were to steal from you, wouldn’t you want what they stole back or at least some equivalent whether in cash or service?
Say that “loss” is satisfied, generally, people want some kind of retribution, or revenge masked as justice. They want the criminal to be punished. But my question is simple. What are the benefits of this? Reformation? Just a deterrent for criminal behavior? At what point in society do we look at the numbers and results of these “deterrents” and “reformations” and decide that our entire justice system needs to be rebooted.
I’m not going to answer that question in this post, even if you will get a sense of which side I swing on. No, I won’t do that, however, I am going to cover some core concepts to help with understanding Justice and let you decide what you feel makes the most sense. I would like you to imagine a scenerio in which you, Mr. or Mrs. Reader of this blog post, single-handedly must reform our justice system. Now, let’s get started.
Man made or Natural Law
The first thing with understanding Justice is to decide, or at least be aware of, where the idea of Justice even comes from. Sadly, even this first baby step toward finding the best solution is still a hot topic of debate between Philosophers, and that question is: Is Justice man made or a natural law?
The case for Man Made
Many believe that justice is not a fundamental concept in the nature of reality and there is a lot of reasoning to support this. What concept of justice does a field mouse have against a barn owl swooping it up? Where does justice fall into place with the extinction of dinosaurs by a meteor?
However, if justice really is man made, it doesn’t immediately discredit the notion of our ability to create a set of philosophical rules, methods and tools to use to uncover the true measure of justice. In fact, it means we’re not constrained at all, we would just need to recognize that there is no fundamental “truth” if you will, just merely preferable behavior.
Based wholly on “preferences” we can devise a science of morality to live our lives as in much order and least amount of suffering as possible. An incredible modern Philosopher Stefan Molyneux has written a book titled Universally Preferable Behavior or UPB in an attempt to use the scientific method to create a measure of morality that can be, well, universal.
The case for Natural Law
Ah, but does the laws of physics themselves hold clues that Justice actually is something that can be considered a universal principle? Is there a law already discovered that demonstrates Justice as being a universal principle. Some say yes, and that law is the Third of Newton’s laws of Motion. For every action must be an equal and opposite reaction. This is a very familiar formula in the concept of equality in Justice. Given the equation of someone stealing your lunch money, the reaction should be equal in opposite. In other words that transaction should be reversed equally and oppositely.
The real question is, can we uncover concepts of Justice in the natural world and emulate them for a better society? Much like learning to create aircraft from the flight of birds, can we emulate a pure judicial system by observing the laws of physics?
Utilitarianism vs Retributivism
Should Justice be concerned about an individual debt and/or entitlement, or should Justice be more interested in building a better society?
In my mind, that question is how I build a framework to understand these two concepts about Justice. In some ways, they have similar traits, but for the most part, they are polarized.
Even the actions and punishments that would be carried out under these two schools of thought would be completely different from one another. So where does the difference lie? Why, intention, my good sir. Intention.
For utilitarians, punishment has nothing to do with revenge and everything to do with bettering society. Every action in carrying out it’s measure of justice has to do with achieving societal goals and benefitting everyone or at least the majority. If that means sending a criminal to a spa like reformational community service instead of jail, then so be it.
The concept of punishment fits the crime is not applicable in this concept of Justice. However, if the punishment helps rehabilitate the individual, reduce the crime rate and benefit society, then Utilitarianism achieved!
Personally, I can easily get on board with this. In fact, this concept is at the core of the debate my friend and I shared. In my mind, I view crime as a disease and what is a fundamental property of a disease? The potential for a cure.
In criminal trials, the insanity defense is the claim that the defendant is not responsible for his or her actions due to mental health problems (psychiatric illness or mental handicap).
We traditionally don’t punish the mentally ill, or otherwise those unable to distinguish good from bad. But what if you look at criminal behavior as a symptom of a social ill? Just to house a framework for my line of thinking, imagine taking an everyday criminal out of the broken home that made them and placed them into a very well-structured and loving family. Chances are they wouldn’t be criminals. I get it. It doesn’t work for everyone but I can safely say there is a majority here.
Then the question is begged to be asked. What do we do with him/her? Well, maybe we can answer that in another blog post, but suffice it to say, it’s about perspective and intention and tweaking those two dials on our character as a society could lead to more positive outcomes. Now don’t go thinking that I’m claiming criminals are victims and they should have more rights and freedoms to continue on making bad decisions. No, but a shift in perspective might lead us to proactively make steps to prevent the disease instead of treating the symptoms.
Now don’t go thinking that I am all about Utilitarianism and stink all over Retributivism. No, sir. I am nothing but gray about truth, at least at this point in my life. So let’s take a good look at Retributivism.
The long and short of it, Retributivism is about paying the price for what you’ve done. In a sense, when you commit a crime, you immediately create a debt, and that debt needs to be paid back to the entity that you had committed the crime against.
When an offender breaks the law, justice requires that they forfeit something in return.
Generally, punishments would be carried out in a procedural fashion and the punishment must fit the crime. Retributivism has often been confused or tied to the concepts of revenge as opposed to justice on a social order.
This is probably the longest standing concept of Justice as it can be traced back to ancient Chinese and Judaism custom and most likely the common understanding and accepted practice of Justice we know.
Another worthwhile concept of Justice worth mentioning is Restorative Justice. This concept can easily fit within and between Utilitarianism and Retributivism as it focuses more on the victims of the injustice than the criminal. Take for example someone that commits the act of defacing or vandalism by spray painting the side of a shopkeepers store. Justice would err on the side of the shopkeeper, focusing its attention on restoring any damages done, setbacks to profits, etc. Obviously, the criminal would be involved in repainting the store, paying for lost wages, and otherwise bringing the shopkeeper back to a state of normalcy.
Stuck in the rut
Justice is such an ambiguous term and we certainly did not cover every nook, cranny, and opinion on the concepts surrounding the idea of “Justice.” With that, I’d like to make a small argument about procedurally doling out justice.
I’m aware of the benefits of procedural justice when handing out solutions for injustices. It keeps law and order on the relatively same scale. It ensures bias is prevented and otherwise absolved and it even creates a sense of consistency and lowers surprises for the victim as well as the criminal. However, we do lose a lot.
If we stick to procedure, over time that procedure changes as it is brought into question on very particular cases in which they are related. No two cases are the same and if we stick to a cheat sheet when doling out “justice” we are going to miss a lot of opportunities for real correction both for the criminal and society. No two people are the same. Let me give a quasi-example with how I handle discipline with my kids.
I have two rambunctious boys and a little girl (which by osmosis is picking up that rambunctious bug). These boys hold value in two completely different areas. We have a point system in our home. If you do your chores, no whining, do a kind act, etc. you earn points. These points can accumulate and the next thing you know, we’re buying a toy at the store or going to laser tag. These points can also be taken away when fighting, when yelling, when, basically, just being a turd.
My oldest son, he desperately clings to those points. My middle-kid, well, he could care less. The points, for whatever reason hold zero value to him.
My point is, as procedural punishments become even more procedural and less individual, they lack power to actually influence for the better. In other words, if I am about to commit a crime, I just have to simply weigh my options. According to procedure, if I steal this candy bar, I’ll just have to do some community service. Meh, I’d rather not but it’s no big deal. I have nothing planned for this weekend anyway. Maybe I hate community service, maybe I don’t, but either way, I can make a risk/reward assessment. However, if the punishment is unknown and individualized, yet still fits the crime, then we have something else to consider and we all know, everyone fears the unknown. Now this is a scenario for a perfect world. I mean, who has the time to individualize every single punishment for every single crime. Well, it’s worth considering at the least.
The Proactive Approach
Unfortunately, justice is, as viewed by our modern society, a reactive station. How much power in education and information are we prescribing to our society. We spend millions upon millions of dollars for reactive judicial systems to treat the symptom of crime and justice. We shovel more and more money into our courts, jails and law enforcement than almost any other program in my country, the US of A. If we could just take a few barrel fulls of money from that huge freighter of Justice and use it to proactively educate, prevent and otherwise treat the cause of crime, we might actually save a buck. And if we’re lucky, we might be able to make a society that gives peace a chance.
What do you think?