Reprinted from last March
My nephew asked a few posts ago about presumption of innocence in our system -- whether the fact that a guilty rich man could go free with expensive lawyers, while an innocent man with poor representation is condemned, illustrated a presumption of innocence.
People who have studied the history of law can explain to me how my ideas keep coming up every century but have to be shot down as stupid, but I'll have a stab at it.
I suspected immediately that the question is dependent on another, and reflection has not changed my mind. Is the purpose of law to create justice, or to limit injustice?
Our hearts would ask of our laws that they created justice, but the practical experience of actual law suggests otherwise. Even when God gives law, the majority of the 10 Commandments are negative expressions. When Jesus is asked to name the greatest of the laws, he quotes summary statements of positive law: Love God, Love your neighbor. His teachings in the Gospel of Matthew 5 through 7 also include mostly positive, justice-seeking law. These are also some of the hardest chapters to endure, as they command of us a level of justice we immediately know we cannot attain.
I take from this that using law to create justice is the higher expression, but one so far out of reach that we immediately resort to something lower that we can handle. Jesus says as much when discussing divorce, giving the positive command of what the perfection of marriage should look like. When the disciples protest that this is too hard, complaining that Moses gave them an out, Jesus acknowledges that Moses did indeed offer a law to limit injustice, because of their hardness of heart.
If Jesus barely dares to push us that far, it isn't surprizing that American law seldom aims so high. We may speak highly of Life, Liberty, and the Pursuit of Happiness, but when it comes down to actually enumerating what the laws will be, they begin "Congress shall make no law..."
We might hope to create perfect justice in any situation, and perhaps it is worth trying to frame a law that way. But more likely, positive justice will be a sword too sharp, too able to create misery if used incautiously. The utopian communities and governments illustrate this. Idealistic, aspirational communism created the greatest horrors of the 20th C. Settling for limiting the injustice in a fallen world, attempting not to prevent injustice but to respond to and remedy it, has produced the more peaceful society.
7 comments:
In the 900's the Church, after converting virtually all kingdoms in Europe, tried to outlaw warfare as a means of settling disputes. They preached "the Peace of God". But inevitably someone didn't get on the program and so they then settled for "the truce of God" which essentially allowed all the OTHER kingdoms to gang up on any kingdom that broke the truce.
Finally, around 1090, it was considered virtually 'proven' that war is sometimes necessary to avoid worse calamities and injustices. This led to the crusades which were essentially armed pilgrimages but under very strict moral restrait codes. The men who volunteered for the crusade obviously abandoned their homes for years on end - and Europe tried to pass laws guaranteeing respect for their lands, rights, etc. but in the absence of armed defenders, many castles and villas were sacked by the less morally constrained. I believe therefore that laws ought to lay out guidelines for justice but acknowledge that men will be unjust. Laws without teeth as in serious consequences for their breaking result in anarchy.
Excellent, your last line pretty much summed it up. My thoughts exactly.
Well, it's nice for a guy to have the approval of his favorite nephew.
Interesting post, but the law isn't necessarily about "justice". In many instances, the law is about establishing normative procedures and statuses that enable society to function smoothly - as with contract law, for example - while justice is a far wider concept that doesn't necessarily have anything to do with the law.
"Settling for limiting the injustice in a fallen world, attempting not to prevent injustice but to respond to and remedy it, has produced the more peaceful society."
I'm not sure that I can agree with this. Criminal law at least is partly intended to prevent injustice through deterrence; contract law to prevent injustice through providing an equitable framework.
It seems to me that justice means that a wrong is actually righted. If you steal $1000 from me and when caught you're forced to give it back, justice has been served.
But if you kill my daughter and go to jail for life, I'm still short one daughter. Although you have been prevented from killing anyone else (presumably), I don't know if this constitutes actual "justice." No compensation has been offered except for the fleeting promise of "closure."
I also wonder if the people the Enron execs defrauded will ever see their money again. It's not actually justice unless they do, jail time notwithstanding.
I agree with JW, the problem with the word "justice" is that when you campaign in the name of justice, what that actually means is completely up to you. What, to you, is "immoral conduct" What would you consider "deserving retribution?"
I would think that the laws of this country mostly seek to balance out the unfairnesses as best they can. We can give money back, and punish the thief, but we're powerless to restore a life that's been taken, or to remove years of abuse or neglect from people's lives. We can't make things what they were, so we just try to make sure that things are reasonably equal.
Justice is our second choice. We just can't ever have the first. And that's really what makes laws so frustrating.
If I understand correctly, criminal law is about society punishing the people who violate its norms, while civil law is about citizens recovering the value of loss or damage from other citizens. So strictly speaking, throwing a murder in jail isn't supposed to do anything for for the victims loved ones. (In fact, it is supposed to protect him from them.) If they want the murderer to actually *pay them* for what he did, they have to sue the murderer.
Obviously, the only true justice is "an eye for an eye." We have (mostly) given up this type of justice in order to have a more peaceful society. Sometimes we feel like justice hasn't really been done, but the alternatives would leave us feeling much worse.
Post a Comment