What is Justice

An IllAdvised Opinion on the nature of justice

I started addressing this issue in the post ‘It’s not a game’, but I believe that this issue needs more fleshing out: ‘What is Justice?’

We obviously must start our inquiry with the question of whether there is any such thing. Is there something which might rightly be called ‘justice’? This is not a trivial question. It may be that all we do in our ‘justice’ systems is to decide how we want our society to act, and then pass laws and enforce them to encourage those within the jurisdiction to act that way. If we were to decide that we wished everyone to be naked on Wednesdays, or to eat only bananas on Thursdays, then we could, merely because that is what we want, pass those laws and enforce them. (One wonders if the naked law were to be moved to Saturday if we might have a rather quiet Sabbath!)

But this is not what we tend to mean when we talk about justice. What we tend to mean when we use the word ‘justice’, almost instinctively, is that there exists some objective standard, outside of ourselves, that we are attempting to apply. That this standard covers both what we should want, and how we should go about getting it.

Let me give you an example. There is a phrase, “Pour encourager les autres” (‘to encourage the others’) that is used in some political or military stories to indicate a situation where some generals or politicians are shot for some crime, and the point is not to punish them for the crime, but to ‘encourage the others’… ie to discourage them from committing the same crime, or even come close to it. So if they are shot for a lack of courage, that was intended to prevent ‘the others’ from ordering retreats.

Now the trick is that these generals or politicians that were shot weren’t actually guilty. Or if they were, they weren’t any more guilty than the others. They were shot purely for, as our first discussion suggests, to change the behaviour of the society. Now if the point of the law is merely to change the behaviour of society, then it doesn’t actually matter if the people being punished are more or less guilty than anyone else.

When I was a child sitting in church we would frequently have one child or other drug out of church by their father and spanked. I can assure you that this ‘encouraged the others’. We behaved much better after such a display. But everyone in our church would have been quite scandalised if they had found out that the father’s had gotten together and rolled a dice each Sunday as to who would take which child out to spank them ‘to encourage the others’. We all held, rightly or wrongly, that the child being spanked had actually been misbehaving. Indeed we all believed that whatever they were spanked about was an offence that deserved a spanking.

Indeed there is an alternative to justice. Or, perhaps, a ground for justice that isn’t what we normally think. Perhaps all of justice actually boils down to ‘obedience’. Perhaps we can boil everything down to the relationship that we had with our parents.

We all understood, when children, that parents were different. That one set of parents might set bedtime at 8:30, and another at 9:00. That one set might give a dime standing in for the tooth fairy, another might give a quarter… or a nickel. And we all accepted these differences as representing the fundamental nature of justice in our lives… well… no… we didn’t.

Indeed one of the most common arguments in our households would have been of the form ‘But Billy”. Our bedtime was at 8:30,  but Billy and Tommy got to stay up till nine. (We never used this argument when we were the ones getting to stay up till nine, and Billy and Tommy had to go to bed at 8:30.) Even when we were at our must vulnerable to a straight argument from obedience, when we tended to idolise our parents and had extremely limited knowledge of the world writ large, we still tended to point to a standard beyond that of our parents, to which, we hoped, we could hold our parents accountable.

As did they. It wasn’t just that mother said we should go to the dentist, the dentist themselves said it was time for a cleaning. Mommy was sad that the shot would hurt, but the doctor said…

And then there would be the clash between these authorities. Daddy would get mad at the teacher, Mommy would disagree with the doctor…

The problem, then, with grounding the idea of justice with the idea of authority is that it eventually must depend upon a single, unitary, authority from which all other authority flows. Mommy is an authority, true… but her authority depends on her own adherence to those authorities above her. As it is written, “Mat 8:9 -10For I am a man under authority, having soldiers under me: and I say to this man, Go, and he goeth; and to another, Come, and he cometh; and to my servant, Do this, and he doeth it.

When Jesus heard it, he marvelled, and said to them that followed, Verily I say unto you, I have not found so great faith, no, not in Israel.” 

And, “…nevertheless not as I will, but as thou wilt.”

And perhaps even more fundamentally, “Where wast thou when I laid the foundations of the earth? declare, if thou hast understanding.”

Which in the end collapses into our previous idea of the meaning of justice… that there must exist some standard (in this case representing the will of the creator) which covers all of us, to which each authority and law can be held to account.

Websters 1828 defines justice in the following way:

1. The virtue which consists in giving to every one what is his due; practical conformity to the laws and to principles of rectitude in the dealings of men with each other; honesty; integrity in commerce or mutual intercourse. justice is distributive or commutative. Distributive justice belongs to magistrates or rulers, and consists in distributing to every man that right or equity which the laws and the principles of equity require; or in deciding controversies according to the laws and to principles of equity. Commutative justice consists in fair dealing in trade and mutual intercourse between man and man.

2. Impartiality; equal distribution of right in expressing opinions; fair representation of facts respecting merit or demerit. In criticisms, narrations, history or discourse, it is a duty to do justice to every man, whether friend or foe.

3. Equity; agreeableness to right; as, he proved the justice of his claim. This should, in strictness, be justness.

4. Vindictive retribution; merited punishment. Sooner or later, justice overtakes the criminal.

5. Right; application of equity. His arm will do him justice

6. [Low Latin justiciarius.] A person commissioned to hold courts, or to try and decide controversies and administer justice to individuals; as the Chief justice of the king's bench, or of the common pleas, in England; the Chief justice of the supreme court in the United States, etc. and justices of the peace.

JUST'ICE, verb transitive To administer justice [Little Used.]

Note how many times this definition depends upon some standard outside of the person meting out the justice. ‘to everyone what is his due’, ‘honesty’, ‘integrity’, ‘right’, ‘equity’… the list goes on and on. This is obviously contradictory to a view of justice which relies purely upon everyone doing what we want them to do, where we would hear words such as ‘effectiveness’. Shooting this politician or spanking that child would be judged solely by how much the others were encouraged.

Ah, but what if what we mean by ‘right’ and ‘duty’ and the like is that it is only when justice is seen to be ‘due’ or ‘fair’ or ‘right’ that it is effective? Well, then we live in an Alice in Wonderland world where we acknowledge that all of the people effected by our ‘justice’ system hold a mirage in their head of one sort of system, and that the actual system only works if it successfully pretends to be that sort of system. That our system is a lie and deception right to the bottom. And that it is not important that it is a lie and deception, because there is no such thing as truth.

Except that even the leaders, when it is their turn to be punished ‘to encourage the others’, tend to rail against an ‘unjust’ punishment in part on the grounds that ‘it isn't’ fair’. Leaving us a system where everyone from the top to the bottom is constantly deceiving themselves. “It doesn’t matter, dear Lady Jane Grey, that your execution is not just, it will be effective.”

Now in defining justice as adherence to an objective set of standards, which are reflective of the will of Our Creator I do not thereby say that we will immediately have a perfect understanding of that set of standards, or the will of that Creator. But, going back to my post ‘It’s not a game’, we need to realise at all times that that should be our desire. Thus if a law or system of law is inconsistent with that idea (such as plea bargaining), then it is not a ‘justice’ system, it is an ‘injustice’ system.