JUSTICE IN THE EYES OF THE LAW AND THE STATE
When you go to a civil court you do not always get justice. Very often you just
get law. And it is possible to get justice not because it is justice but
because its law. That would be revenge dressed up. And not all
courts are civil - any context that holds you to account is a court in a sense.
People reason that if you commit a dangerous crime then you don't deserve to be
on the streets but what really matters is that you are removed from the streets.
See what is happening here? They care about practicalities not justice.
Everybody has been lectured by Christians who tell us not
to judge. We are told that we cannot know anybody or why they might want to be
seen as better or worse than they are so we cannot judge anybody or call anybody
guilty.
These are the people who set up, tolerate and praise the legal system which is
based on judgment. Christians can be jurors and judges. The doctrine makes a
person’s testimony about her or his own intentions or those of another sinful.
If you cannot judge another person as bad, then you can hardly judge yourself
either. Christians who forbid judging then, hypocritically call on God when they
take their oath as jurors to approve of what they say though it is thought to be
said in defiance of his will. You cannot even forgive or punish or love the
sinner but hate the sin unless you judge first. Not that it is possible to love
the sinner and hate the sin anyway.
Some say, “Don’t judge a person as bad for having done a bad thing. They might
have repented and changed since so they are good now”. If you cannot judge when
you don’t know if a person has changed or not, you cannot send anybody to jail
but must let criminals do what they like.
The irony is that if you say you cannot judge you are saying that nobody can be
trusted to judge or fight evil and that is a nasty judgment. At least if you
condemned a person you would be able to have some faith in them. You would be
trying to change them and get to know them.
If you cannot judge another person it is safest not to respond in self-defence
when a person tries to kill you in case they don’t intend to do wrong. Perhaps
they are religious fanatics or possessed by demons or compelled by some force to
do this to you.
People who tell you to judge people as good and not bad are obviously endorsing
double standards. They are on the side of the wicked.
We know that a person might be lying when they say that they are good or bad.
But in the absence of any evidence to the contrary we have to take what they say
as true. A testimony that seems to be unrefuted has to be accepted unless there
is a more believable one against it. If there is an equal case for it and
against it then you can merely suspend judgement.
Jesus told us to exercise righteous judgement. He said that we cannot condemn
others for having motes in their eyes when we have planks in our own. He says
you have to remove the planks to be able to see to take out the person’s mote.
That means you are not to judge a person when you see yourself as worse. But
that is absurd. You know you are bad and you can still form an opinion of the
other bad person. It is dishonest to pretend you don't for it's unavoidable. Is
the bad person to pretend that everybody who is not as bad is good or that they
think these people are good? Jesus was two-faced. Are we to let everybody do
what they like just because we are not great ourselves? You have to judge them
to see that they are not as bad as you for heaven’s sake! If the judge is a
secret murderer he has to condemn the murderer to jail.
Jesus told all this to ordinary Jews at the Sermon on the Mount. He was not
speaking to lawyers and magistrates but to the people. He has the idea of
judging actions and not punishing in mind for punishment of criminals and so on
was not up to the people. But nevertheless his words have implications for
magistrates and lawyers but not to them exclusively.
How do you reconcile love and justice? You must say that it is loving to
administer justice and punish people. Punishing respects the criminal as a
person. This however seems to make punishment a favour they don’t necessarily
like, and implies that mercy is a degradation.
Jesus advocated mercy and turning the other cheek. Jesus was indicating that the
reconciliation of love and justice which is that it is right to punish a
criminal because they are persons to be respected and have a right to be
punished is wrong. He said it is not love and respectful towards rights to
punish or judge people who are less evil than you. He is saying that punishment
is immoral. But he certainly allowed it and spoke of the righteous judgemental
punishments of God. This was nothing more than good religious politics. He lied
like a politician. If punishment upholds dignity you should not let your own
worse sinfulness than the criminal stop you from meting it out to the criminal.
Jesus’ doctrine that punishment is good despite being immoral implies that it is
better to put capital criminals to death even at the risk of executing innocent
people. He may have conceded that some innocent people dying wasn't too bad as
long as justice tried to make sure they didn't slip through the net though some
will. It is terrible for an innocent person to be executed. But abolishing
capital punishment for the sake of the innocent victims wouldn't be fair to the
capital criminals. It would be treating the capital criminals as sub-humans. And
what about their victims? Are we to imply they are not worth punishing about?
You have to do whatever has the most dignity in it. Even if punishment is evil,
if you are going to do an evil it is better to do a smaller one than a bigger
one. So it is more dignified to unintentionally execute some innocents with the
guilty than to spare the guilty for the sake of the innocent. This may have been
God’s logic when he told the Israelites of Moses' day to kill everybody in
Hebrew cities that turned to idolatry. The idea is that criminals are equal in
dignity to the innocent so it is not worse for an innocent person to die than a
guilty one and if criminals are honoured by being put to death it is worth it
though a minority of innocents might be executed.
The Christians preach forgiveness and you cannot forgive unless you judge first.
Forgiving a person for accidentally hurting you though they meant well is not
forgiving because you know the person did nothing purposely wrong. All you are
doing is letting go of your cruel streak that wants to see them as bad though
they are not.
Jesus said we must not take oaths to tell the truth for our word should be so
reliable that oaths would not be needed. This implies that all lies are wrong
and that every word we say should be stronger than an oath for it is certainly
the truth. But he also said we were all bad for only God was good (Mark 10:18)
and Paul the apostle reiterated that doctrine later (Romans 3). So Jesus wanted
rid of oaths despite saying we could not be trusted! He was not abolishing the
Law of Moses in this because he was only commanding that we live like the law
about oaths is no longer needed.
Is judging wrong when you are more sure that you do wrong than you are that
others do wrong on the grounds that you are most certain of your own existence?
No for it is safest to judge in case the person does exist. The downside is that
you will judge yourself harshly because you know yourself and how you see
yourself is how you will end up seeing others.
PUNISHMENT
A person who has been forced by something external like another person to commit
a crime should not be punished for the act did not arise from the perversity
within. A person can only suffer for what they did when it was in their nature
to do it.
The two attempts to justify punishment that we are about to examine now, seek to
pay a person back for doing wrong. Even forgotten crimes can be punished
according to the attitude that paying for the crime and not the benefits of
punishment is the prime concern.
The retribution theory is the first. Retribution is justly making the criminal
suffer for doing wrong for no other reason than to express disapproval of the
crime for without it the crime wouldn’t matter. This presupposes that criminals
could have done other than what they did or have free will. You cannot mete out
retribution against a person for what they cannot help. It implies that
forgiveness and mercy are unloving and immoral. Forgiveness and mercy focus on
consequences. They want to avert the bad results of punishment. Punishment says
the principle that consequences are irrelevant is true. Mercy says the principle
is wrong.
The next is the restitution theory which advises making criminals make up for
what they did to society in pain. Some think the making up should be done by
serving society instead of say jail. But all agree that most people at least
need to be in jail. The hypocrites cannot explain how the criminals going to
jail serve society. They are locked up against their will. The only good done is
not done by them but by their confinement. They are out of the way.
As for making up, you cannot really make up for what is done. No matter what you
do the wrong will still have happened.
If you could really make up it could lead to the victim being glad that you have
committed the crime! The victim’s pain may be over and now he or she could be
better off.
It is silly to put the past that cannot be changed before bringing good out of
the situation. Both theories are evil.
Is punishment justified only when it has good consequences or can have them?
The protection theory understands punishing to be for protecting society. But we
are all potential criminals so if we accept this theory we must agree that all
of us should be thrown into the slammer. But it has its merits.
It is claimed that the object of punishment is to reform the criminal.
This theory is wrong for the criminal only needs to change their mind about evil
and suffering isn’t necessary for that. Why be kind if suffering is the best
influence for good?
And criminals will fake remorse and conversion to get released. Why believe a
person who would deceptively try to get away with what they have done? They
hoped to get off when they committed the crime. They proved by their crime that
they couldn’t be trusted.
Lastly, we meet the deterrence theory according to which punishment should be
for putting people who would like to commit crimes off. It would imply that it
is right to punish the innocent as long as nobody can prove their innocence for
all that matters is scaring people off committing crimes. And it implies that
the more cruel the punishment the better.
Punishment is really revenge for none of the justifications of punishment work.
BOOKS CONSULTED
THE SERMONS OF ST ALPHONSUS LIGUORI, St Alphonsus Liguori, TAN Books, Illinois,
1982
SCEPTICAL ESSAYS, Bertrand Russell Unwin Paperbacks, London, 1985
