Justice and Its Implications
What is justice? That is of course a central question in our society, and one which it behooves us to answer.
The way I see, it there are three main schools of thought on the nature of justice.
Justice as Retribution - This is the oldest school. It sees justice as a way of somehow returning the balance of happiness (which, presumably, was infringed upon by some aggressor) to the state it was at before, at least as much as humans can, by infliction upon the convicted retribution for his crimes. This is the view of justice held by most traditionalists as well as Orthodox Marxists (who are, because of it, actively anti-Justice).
Justice as Rehabilitation - This view holds that the criminal is sometimes just as much of a victim as those who he victimizes. A victim, that is, of a (presumably) curable condition which causes his criminality. It is the job of the state not necessarily to repay the victim, but to cure the criminal, so as to reduce the chances of further crimes by attacking their root cause. This is the view held by most modern liberals and analytical Marxists.
Justice as Deterrent - This view of justice also feels that the main purpose of justice is not to repay those who were infringed upon, but to prevent or minimize further infringement. However, those who believe in justice as a deterrent focus not on curing the criminal after he has committed the act, but in preventing him from doing it beforehand. Therefore, they advocate harsh punishments usually for their own sake. The view of justice as deterrence is popular among utilitarians.
Those are, as I see it, the three main views. They all of course, have distinct and different implications for how we should conduct the operation of justice, as a practical matter. I believe that an investigation into thes implications of justice as deterrence and rehabilitation will show that they cannot be the true expressions of justice. Furthermore, an investigation into the nature of rights and property will show that the only acceptable view of justice is justice as retribution.
Firstly, justice as rehabilitation. The reason that this cannot be an acceptable view of justice are twofold. The first is that it causes what consists of a crime to become arbitrary, and what consists on an acceptable reaction to become arbitrary.
Essential and necessary to the view of justice as rehabilitation is the view that there is no distinction between behavior which is, distinctly criminal, and behavior which is socially unacceptable to the point that we consider it a disease to be cured. This opens the floodgates. If we act on this principle, we could drag people into the courts for behavior such as homosexuality, or even politically deviant views. Whatever the government deems to be a disease to be cured becomes something to be treated by a court of law, rather than behavior which can be shown to be specifically criminal in its nature, because it actively infringed upon the rights of others.
Secondly, when someone is given justice via retribution they have certain rights. It is thought to be essentially unjust to give the convicted retribution greater than the infringement in which he engaged. No man would be sentenced to death for possession of marijuana. Secondly, he has certain rights. No man may be kept for longer than his prison sentence, for example. Having paid his debt, having had his just retribution meted out against him, he is no longer a criminal, but is once again an innocent man. However, if a man is to be cured rather than be given a sentence is not a prisoner but a patient. What must be done to him, or how long he must remain detained, is in no way connected to his crimes. Rather, it is the arbitrary will of those who are charged with "curing" him. He may be locked away forever, if is never judged by others to be cured. Because he is not, in theory, paying off any debt, he is not, in theory, capable of ridding himself of that debt through a sentence, and then returning to society. He is, in essence, without rights until he is judged cured. This opens itself to massive abuses of power by the state regarding what is considered behavior demanding of a cure, and what the standards are for deciding upon a "cure".
This, it seems to me, illustrates that justice as rehabilitation is inherently flawed.
There are also two glaring flaws in justice as deterrence.
The first is that if justice is merely a deterrent, it is not necessary the case that one must be guilty in order to be punished. Nor is it necessarily the case that the punishment ought fit the crime.
It would be possible, in theory, for the state to convince the public that each and every murder resulted in the capture of the murderer, his trial, conviction, and execution. One way the state could do this would be to, having failed to find the real culprit, instead arrest an innocent man and subject him to this. The rights of the innocent man would have been ignored, but justice would have served its purpose, in creating a deterrent for murder. Certainly people would be less inclined to murder if they believed that all murderers ended up in the electric chair!
Secondly, it is likely much harder, and less necessary, to deter murder than to deter thievery. Firstly, most murders are committed in the heat of the moment, against friends, loved ones, etc. Except for in a few cases (serial killers, other sociopaths) murderers are unlikely to be repeat offenders. Thievery however, it usually the result of calculated action, designed by the perpetrators to derive benefit, and thieves are often very likely to be repeat offenders.
So then, the state must conclude, if it believes that justice is a deterrent, that the punishment for thievery should be greater than the punishment for murder. Both because it is nearly impossible to deter the large majority of murders, because of the way in which they are committed, and because thieves are much more likely to re-commit thievery than murderers are to re-commit murder. Again, excepting for cases such as sociopaths and serial killers, which are exceedingly rare.
So then, it is only the view of justice as retribution which can protect both the rights of the criminal and the non-criminal, by ensuring that personal guilt is a necessary pre-condition for a just conviction, that the prisoner has rights which must be respected, and that only behavior which involves actual infringement by one party against the rights of another party can be considered distinctly criminal behavior, rather than simply "sick" or "unacceptable" behavior.
As such, I feel that justice as retribution is the only valid view of justice.
The way I see, it there are three main schools of thought on the nature of justice.
Justice as Retribution - This is the oldest school. It sees justice as a way of somehow returning the balance of happiness (which, presumably, was infringed upon by some aggressor) to the state it was at before, at least as much as humans can, by infliction upon the convicted retribution for his crimes. This is the view of justice held by most traditionalists as well as Orthodox Marxists (who are, because of it, actively anti-Justice).
Justice as Rehabilitation - This view holds that the criminal is sometimes just as much of a victim as those who he victimizes. A victim, that is, of a (presumably) curable condition which causes his criminality. It is the job of the state not necessarily to repay the victim, but to cure the criminal, so as to reduce the chances of further crimes by attacking their root cause. This is the view held by most modern liberals and analytical Marxists.
Justice as Deterrent - This view of justice also feels that the main purpose of justice is not to repay those who were infringed upon, but to prevent or minimize further infringement. However, those who believe in justice as a deterrent focus not on curing the criminal after he has committed the act, but in preventing him from doing it beforehand. Therefore, they advocate harsh punishments usually for their own sake. The view of justice as deterrence is popular among utilitarians.
Those are, as I see it, the three main views. They all of course, have distinct and different implications for how we should conduct the operation of justice, as a practical matter. I believe that an investigation into thes implications of justice as deterrence and rehabilitation will show that they cannot be the true expressions of justice. Furthermore, an investigation into the nature of rights and property will show that the only acceptable view of justice is justice as retribution.
Firstly, justice as rehabilitation. The reason that this cannot be an acceptable view of justice are twofold. The first is that it causes what consists of a crime to become arbitrary, and what consists on an acceptable reaction to become arbitrary.
Essential and necessary to the view of justice as rehabilitation is the view that there is no distinction between behavior which is, distinctly criminal, and behavior which is socially unacceptable to the point that we consider it a disease to be cured. This opens the floodgates. If we act on this principle, we could drag people into the courts for behavior such as homosexuality, or even politically deviant views. Whatever the government deems to be a disease to be cured becomes something to be treated by a court of law, rather than behavior which can be shown to be specifically criminal in its nature, because it actively infringed upon the rights of others.
Secondly, when someone is given justice via retribution they have certain rights. It is thought to be essentially unjust to give the convicted retribution greater than the infringement in which he engaged. No man would be sentenced to death for possession of marijuana. Secondly, he has certain rights. No man may be kept for longer than his prison sentence, for example. Having paid his debt, having had his just retribution meted out against him, he is no longer a criminal, but is once again an innocent man. However, if a man is to be cured rather than be given a sentence is not a prisoner but a patient. What must be done to him, or how long he must remain detained, is in no way connected to his crimes. Rather, it is the arbitrary will of those who are charged with "curing" him. He may be locked away forever, if is never judged by others to be cured. Because he is not, in theory, paying off any debt, he is not, in theory, capable of ridding himself of that debt through a sentence, and then returning to society. He is, in essence, without rights until he is judged cured. This opens itself to massive abuses of power by the state regarding what is considered behavior demanding of a cure, and what the standards are for deciding upon a "cure".
This, it seems to me, illustrates that justice as rehabilitation is inherently flawed.
There are also two glaring flaws in justice as deterrence.
The first is that if justice is merely a deterrent, it is not necessary the case that one must be guilty in order to be punished. Nor is it necessarily the case that the punishment ought fit the crime.
It would be possible, in theory, for the state to convince the public that each and every murder resulted in the capture of the murderer, his trial, conviction, and execution. One way the state could do this would be to, having failed to find the real culprit, instead arrest an innocent man and subject him to this. The rights of the innocent man would have been ignored, but justice would have served its purpose, in creating a deterrent for murder. Certainly people would be less inclined to murder if they believed that all murderers ended up in the electric chair!
Secondly, it is likely much harder, and less necessary, to deter murder than to deter thievery. Firstly, most murders are committed in the heat of the moment, against friends, loved ones, etc. Except for in a few cases (serial killers, other sociopaths) murderers are unlikely to be repeat offenders. Thievery however, it usually the result of calculated action, designed by the perpetrators to derive benefit, and thieves are often very likely to be repeat offenders.
So then, the state must conclude, if it believes that justice is a deterrent, that the punishment for thievery should be greater than the punishment for murder. Both because it is nearly impossible to deter the large majority of murders, because of the way in which they are committed, and because thieves are much more likely to re-commit thievery than murderers are to re-commit murder. Again, excepting for cases such as sociopaths and serial killers, which are exceedingly rare.
So then, it is only the view of justice as retribution which can protect both the rights of the criminal and the non-criminal, by ensuring that personal guilt is a necessary pre-condition for a just conviction, that the prisoner has rights which must be respected, and that only behavior which involves actual infringement by one party against the rights of another party can be considered distinctly criminal behavior, rather than simply "sick" or "unacceptable" behavior.
As such, I feel that justice as retribution is the only valid view of justice.
posted by Ben-T | 10:59 PM
1 Comments:
That was an outstanding post.
It doesn't make much sense to arrive at a conclusion aside from the glaringly obvious - that justice should primarily be retribution. The reason, I think, why people are reluctant to embrace this view is that we like to think we're not as barbaric as all that.
However: "We have met the enemy, and he is us", as a famous man once said. He's right.
Post a Comment
<< Home