What is Justice?

Saturday, 27 June 2009

judge-wigKANT’S Categorical Imperative suggests that there is a morality based on duty. Duty is a morality that must be obeyed or else we become savages.

When I “did” Kant at university, it was explained to me that people sentenced to prison or death would have to be imprisoned or killed — even if the world was suddenly about to end! The law is the law regardless.

Kant tended to be used as the opposition to “Utilitarianism” — the philosophy that underpins the law of the United Kingdom.

Utilitarianism very much depends on clearly defined boundaries (which is also its primary weakness).

balanceThe entire idea of justice under utilitarianism is about weighing up the good versus the bad — will an action have an overall nett gain or loss, will more people be made happy — will happiness increase.

john-stuart-mill-paintingThe effect on the British legal system — from the famous MP, John Stuart Mill — is apparent even today.

Take for example a murder. If the person who committed the murder is not considered a danger to others, then the sentence will be slight, whereas, a drunk driver would receive a harsher sentence because of the risk posed to society.

Even though we have a utilitarian system, the newspapers pretend that we have a Kantian system and ask how come a drunk driver can get a punishment that is worse than that given to a convicted murderer.

But, when you think about it, is this not common sense? Take a woman — for example — who has taken years of abuse from her husband, and who finally snaps and stabs him to death — is she a general threat to lives? Will she be likely ever to harm anyone again? Compare that to the rapist or drunk driver — the repeat offender who cares not for other people’s lives.

kant

The weird thing about Kant and his laws, is that — in the style of “an eye for an eye” — a murder deserves death. But what of a mass murderer? You can only kill the prisoner once, even if the prisoner has killed hundreds?

  • So how can a punishment ever fit the crime?

The answer is that punishment can never fit a crime, and that a wrong should not generate another wrong. Two wrongs do not a problem solve.

The old saying, “Two wrongs do not make a right — but two Wrights made the first aeroplane” is beautiful for it shows that the power of combined good is greater than combined wrongs — good means we can fly!

There is another old saying — “A problem shared is a problem squared”. This is sometimes, erroneously, given as “a problem shared is a problem halved”. “Shared” rhymes with “squared”, and it’s truth is obvious, can you quote a single instance where sharing a badness or telling of a bad thing diminished the problem?

  • What if a reaction to a crime (punishment) is less about the crime and the criminal, and more about the state, the people, the victims and survivors?

If a murderer is found guilty of killing a human being and that killing a human being is said to be a really bad thing, then how can we, or the state then kill the murderer? That would be two wrongs.

What does this say about us/ the state?

On the other hand, if the state shows compassion, it says a lot about the state and the people (that they are good)… but how to manage that without appearing too soft?

The basis of utilitarianism is that we minimise the overall amount of bad and try to increase the amount of goodness.

jail_cellIf a person is a murderer, but not a risk to the general population, what is the problem? If there is a potential threat to the population — then incarcerate the person, simply to protect the population — get them out of society… but they are not being punished, they are not being treated badly at all, because that would be bad generating more bad. They are merely kept away from causing harm to the general population — and this means a nice cell, some satellite TV, and a comfortable existence.

  • The newspapers love this and say how is this justice? Victims and their families want bad things to happen to the guilty. Retribution.

last_judgementRetribution is a Biblical word, and as such some people feel that it is God’s way — fundamental Christians and Muslims see retribution as right, that acts have consequences, and crimes have punishment.

I find that interesting, especially as such religions purport to believe in God’s Judgement — if that is so, then why are THEY judging? Are they pre-empting The Almighty?

dali-crucifixionAs an aside, it is interesting to consider whether Jesus was crucified by Kantian law or Utilitarian philosophy — was it the letter of the law or that he posed a great threat to the greater good as the state saw it?

Funny that the Bible came up, but then so much of law is based on Roman Law and Canon Law, so we ought not to be so surprised really.

justiceConsider this: for people to take justice seriously, it needs a sword — in allegorical paintings and statues, the sword of Justice is usually represented as being held in the right hand, and a balance or scales on the left hand. How sad that a legal system requires punishment — retribution,  or at the very least a deterrent —  simply to be taken seriously. The implication is that things are weighed up, judged and then a verdict given that must be obeyed or else a new crime (against the law itself) is committed and the sword of justice comes into play.

How far our law has strayed from their original Canon law and Roman Law roots!

Mind you, justice in the Bible is considerably erratic, inconsistent and weird.

shakehandsHowever, there is one aspect in there, though, that is almost always now overlooked — the idea that “Justice” can be about satisfaction (rather than Utilitarian “happiness” per se).

This justice is about striking a deal, finding an answer that the concerned parties can agree to. This is an incredibly unusual idea, and I think it is worth pausing here to get to grips with this notion.

Justice is served when those involved are “satisfied” with the outcome.

So if someone robs you, and you are happy if he just gives your stuff back, then that is justice — rather than going to prison of x years under a Kantian system or getting off with community service under a utilitarian system.

  • This style of justice is on a case-by-individual-case-basis — not a fixed and inflexible rule.

The problem with such justice is that it is unquantifiable — and open to the persuasive influence of a silver-tongued Mark-Antony, but that is as human as the concept of satisfaction and reparation. In fact it is essential when you think about it; how else can people reach a compromise?

Interestingly, it also opens up the possibility of considering the criminal’s feelings — can it be possible to find a judgement that both the victims and the perpetrator can agree on as being fair? A “fair cop”?

It may even be possible to connect the criminal to the victims more directly — reparation or personal compensation — such that instead of paying a fine to the state, the money is taken from the guilty criminal and paid directly to the victims.

Suddenly, there is a way to have the punishment fit the crime — but only in the sense that the conclusion is appropriate, apt, and fitting.

Would any or all of this have an effect on the criminal that is different from any outcome under Kant or Mill?  I reckon it would; I think a lot of criminals regret getting caught, and do not feel their punishment is fair.

  • When the criminal, the victims, the newspapers and the general public can all feel unfairness, then something is definitely wrong.

Instead of advocates quoting precedent cases and verdicts or the technicalities of legal language, and a Judge presiding over the advocates and directing a jury on points of law — the Judge’s role could be more about bargaining and trading to reach a successful conclusion — that of satisfaction.

duelThere once was a time when men shook hands on deals, gave their word, and their word was their bond. They were called “gentlemen”, but when it was necessary, they were honour-bound to challenge each other to duels. They always “demanded satisfaction” — and everyone understood that satisfaction was a matter of honour.

At the end of the day, a Judge who can resolve a case before him in such a way that it is considered to be fair by all or most, has to be far better than any one-size-fits-all general philosophical or religious ideology that I have found.

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7 Responses to “What is Justice?”

  1. ifred Says:

    This is innteresting in consideration of The Lockerbie bomber Abdelbaset Ali al-Megrahi getting released aged only 57. If the Scottish government showed compassion then it shows how much better than terrorists we are. You can’t win with terrorism because if you kill them, you are like them, and you actually make them martyrs to their cause. I cannot agree with you that a moral or ethical stance cannot be taken. We have the high ground here, and no amount of media smearing can change that.

    • donald ban Says:

      I am fed up with the media twisting on this case! Are people THAT stupid? er… probably! Damn! The fact though remains that the decision was Scottish (not UK). The UK governmant stated that they had no particular desire for Al-Megrahi to die in prison, and that simply means what it means and nothing else. It means that the UK would not try to bear down on the Scottish Government to free him or keep him inside. Am I the only one who understands what is going on???

      There is no conspiracy here, and the Scottish governmant was not influenced by the US or UK (rather bloody obviously).

      The scots were hung up to dry. if they kept him, they would be acused of bending to the pressure from the UK and US, if they let him go, they would be acused of bending to pressure from companies and UK interests in oil!
      Meh!

      • Shiela Pound Says:

        I agree with RTone that justice was not served with the Pan-Am bomber because satisfaction has not been reached. They should have let him rot in jail. The fact that they do not let anyone rot in jail in Scotland on so-called “compassionate” grounds is preposterous!

      • Jim Donaldson Says:

        The Scots were used!

  2. Esther Says:

    OK, if a theft took place and the thief caught, you say that Justice is served when satisfaction is reached and all parties reach a deal. But the ante will surely be upped over time. For instance, consider the next case of theft. The deal struck yesterday will be the basis for satisfaction in this case, because the people involved won’t want to be short-changed. Either you end up with a crazy and unworkable system, or you end up with a rigid law that everyone can agree on.

  3. Daved Says:

    I don’t understand what you mean; in the first case, the solution has to be reasonable for it to have worked and entered as record. In the second case, it also follows that the calls for justice be reasonable, and reference to the first case would be pointless. I would agree that you probably would end up with a level of consistency, but one that has been reached organically and naturally, rather than by some arbitrary dictum, nevertheless I do not see this as being in any way a rigid law, for trends change over time, and this method allows for such tides to rise and fall as the mood prevails.

    What I really like about this idea is that it allows for different backgrounds, cultures and religions to plug in to the justice system.

    I mean, what need for some secondary, Mafia-like system when satisfaction is agreed upon?

  4. Dion Says:

    Deontologically speaking, the effect or result/ consequence is not as important as the motive or intention behind an action/ crime. Fitting the punishment to the crime is imprecise — ought we to say instead, fitting the punishment to fit the intention or else fitting the punishment to fit the consequences, intended or not?


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