Justice vs. The Law

 Posted on June 27,2009 in Uncategorized

Defending People reader "Ryan", writing at Plain Error, the official blog of the Innocence Project of Florida, responds to my "Law and Justice Explained." post:

As someone with the status just above armchair philosopher (disclosure: I will be attending graduate school for a PhD in philosophy in the fall), I have a few words on that one.The idea that "justice" has no relationship to the law – and the poster is very clear that they believe this – is, I think, obviously mistaken. This is what they say:

1) Justice is a topic that exists in philosophy.

2) Law is what a bunch of mostly long-dead politicians thought would get them elected.

3) Never the twain shall meet.Here are the missing premises.

1) Justice is a topic that exists in philosophy.

2) The public, with whatever understanding of philosophy they have, combined with their upbringing and social mores, have formed concepts of justice for themselves.

3) A voter's support for a politician is proportional to their belief that the politician is like them, or will enact policies that see their beliefs fulfilled.

4) The more a politician's ostensible definition of justice falls in line with a voter's the more likely that voter is to support that politician, other things being equal.

5) Politicians act in ways they believe will get them elected.

6) Politicians mimic what they believe is the public conception of justice when they enact laws because they believe it will get them re-elected.

7) Laws come to resemble the public conception of what justice is.Finally, which should be a premise between my (2) and (3) above: as much as philosophers like to think they've got it figured out – though they are often quick to point out that they know nothing – you might be surprised at how much philosophical conceptions of justice are either informed by or in line with public conceptions.

It's been a long time since the last philosophy course I will confess to having taken. The whole of the intellectual residue from my formal philosophical training is the ability to distinguish Khan from Kant:

(though I still tend to forget which of them was responsible for describing the categorical imperative, and which for stealing the Genesis Device).

As a philosopher, I don't even rate an armchair. To the extent that I commit philosophy, it's philosophy of the forensic "what eternal truth, applied to this case, will keep a jury from eviscerating my client?" or the practical "how do I understand what I perceive to be grave injustices of the criminal law without sinking into despair?" rather than the academic sort.

I hesitate to ridicule earnest readers of Defending People... but only briefly.

Does "I will be attending graduate school for a PhD in philosophy in the fall" mean anything more than, "I've got a BA in some liberal arts field, possibly even philosophy"? Is a degree in philosophy necessary to discuss philosophy? If so, what does that make Plato? Aristotle? Socrates?

Morons?

Assuming that "I will be attending graduate school for a PhD in philosophy in the fall" doesn't specially qualify one as an authority on the relationship between justice and the criminal justice system, Ryan's position will have to stand or fall on its own merits. Or lack thereof.

I'll take his "missing premises" sequentially, internet-style. Let's look at them practically, considering our experience in the real world:

The public, with whatever understanding of philosophy they have, combined with their upbringing and social mores, have formed concepts of justice for themselves.

Most of the public have had neither the leisure nor the inclination to give a whole lot of thought to what justice is, beyond a dictionary definition that is useless in court. The public conception of justice tends to be informed by the hysteria of exaggerated fears, which are fed by the special interests (which I discuss briefly below) that benefit from harsher punishment. When you entrust justice to the majority, you get mob justice.

If justice exists, it's individualized. What does someone deserve who commits murder? Some people who commit murder deserve to be commended, and some deserve to be hanged. Any one answer to the question of what punishment is merited for a particular crime is going to be wrong more often than it's right. To the extent that the public has formed concepts of justice for themselves, they are coarse-someone who does X deserves Y-and don't account for the subtleties of human behavior. This is meataxe justice.

Philosophical conceptions of justice are either informed by or in line with public conceptions. Justice is treating others fairly. Justice is giving each person their due. Justice is having what one deserves. It is for philosophers to unpack somewhat vague notions like these, but they certainly start with premises everyday people are likely to believe, and oftentimes end up not very far away.

So justice is having what one deserves? Seriously, that's the best you can do, Ryan? This is the dictionary definition of the word "justice", which says nothing about what justice comprises, and is entirely useless in court. What does one deserve? What does the guy who committed murder deserve? How deeply must we delve into his background in making that decision? What mitigates and what aggravates? Who deserves the noose, and who the medal? Clarence Darrow believed that there was no way we mortals could possibly have enough information to answer these questions, and that the best we can do is cling to charity and understanding and mercy.

If the best philosophers can do after 2,600 years of philosophizing is "justice is treating others fairly", then God help us if we're going to leave it to the academic philosophers to "unpack" these "somewhat vague notions" and tell us what justice is.

A voter's support for a politician is proportional to their belief that the politician is like them, or will enact policies that see their beliefs fulfilled.

Maybe. The hide-the-ball word here is the first "belief". Unspoken is the additional premise that voters correctly perceive politicians' beliefs. This falls in the the realm of psychology but, as a practical matter, some politicians get elected because of their name or position on the ballot or because of what they say their beliefs are (family values, anyone?), rather than what the politicians will actually do once elected.

The more a politician's ostensible definition of justice falls in line with a voter's the more likely that voter is to support that politician, other things being equal.

Here the weasel words are "ostensible" and "other things being equal." Does a politician's ostensible definition of justice necessarily match his true definition? Does a definition tell us anything? Politicians' advertising budgets being equal? Voter awareness being equal?

Politicians act in ways they believe will get them elected.

That, at least, is inarguable. Politicians will pretend to be whatever they think they need to pretend to be to get elected, and will pander to whomever they believe they need to pander to to get elected. Here's a major hole in any "law = justice" argument: even if the voters gave much thought to the questions of justice, the influence of special interest and big money groups on elections is so great that politicians effect the ethics of MADD or the prison-industrial complex rather than the voters.

Since the special interest and big money groups are spending money to influence public opinion at the same time they are spending money to influence politicians' votes, it might appear that politicians' votes are following public opinion, rather than everything being led around by the PR people's highly advanced manipulations.

Politicians mimic what they believe is the public conception of justice when they enact laws because they believe it will get them re-elected.

If, to turn a buck, I mimic what I believe is the public conception of a bird, am I any closer to taking flight?

Laws come to resemble the public conception of what justice is.

This is a non sequitur. Even if each of the previous principles were correct, the most that could be said is that laws come to resemble what politicians believe is the public conception of justice that will give them the best chance of being reelected.

Smilin' Jack's proposition, of which I approved in my last post on the subject, was that there's no connection between law and justice. By describing the connection he sees-law is politicians' mimicry of their understanding of the crude beliefs of the public, enacted for the purpose of getting the politicians reelected-Ryan unintentionally makes the same point.