Justice, Law, and Punishment

Justice, Law, and Punishment Ethical theory and practice

What is justice? • Our word ‘justice’ is derived from the Latin iustitia – fairness, equity. This is a much disputed concept in modern ethical debate, allowing for a number of possible interpretations. Social justice Theological justice Personal justice Legal / constitutional justice Natural justice

Is justice evident in the following scenarios? How is it to be defined? • You work really hard on an essay and get a good mark. • A persistent chocolate bar thief gets 10 years hard labour. • The income gap between the very richest and the very poorest people in Britain narrows. • The wealthy have their income protected from the taxman by offshore accounts. • A re-trial is granted to a convicted child molester, because some of the evidence was inadmissible. • God forgives the sins of those who truly repent. • God punishes the Egyptians with a plague of boils. • What goes around comes around: a serial rapist dies of an STI.

Plato: justice and the ideal city • In his dialogue The Republic, Plato uses the extended metaphor of an ideal city as a way of explaining what justice is. This city has “the qualities of wisdom, courage, self-discipline and justice”. • For Plato, the perfect city acts as a mirror for the perfect individual, so an ideal and just human being would be a bit like the just state he proposes. • For Plato, an ideal society requires structure and equity in the use of resources. People must be divided into different classes: produces, warrior, and guardians (rulers), so that they all perform the function which they are best at. • This harmony and specialisation is the essence of justice; the behaviour of the individual fits his or her best abilities and does not interfere with the tasks assigned to others. • At the top of the just state is the ‘philosopher king’ – somebody who studies philosophy and thus values true justice above personal wealth, power, and ambition. “There can be no end to the troubles of the state, or of humanity itself, until philosophers become kings in this world.”

Christian justice • Christian ideas of justice have been profoundly shaped by the Bible, and it is a key assumption that God himself has justice as one of his divine qualities: “I the Lord, love justice” (Isaiah 61.8). • It is a common biblical theme that God loves the poor, the widows, and the orphans. God’s demand for justice can be seen as an inevitable power; it “rolls like a river” (Amos 5.24). • The attitude of Jesus towards social justice in the NT, however, is controversial. It might be suggested that Jesus preaches a ‘reversal ethic’ of elevating the poor and humbling the rich. Such an approach is taken up in Liberation Theology, with theologians such as Gustavo Gutierrez arguing for a political Christian message. Christians must fight against social injustice and political oppression, since this is what Jesus did. • We might also speak of a form of theological justice in the Christian idea of rectification: God acts to repair his relationship with humanity through the atoning death of Jesus and forgiveness. ‘Justice’ would be a state of harmony and peace in creation, with God at one with his creatures.

Justice and objectivism • Justice can be described in many ways. Some suppose that justice is something concrete and real; it applies equally to everyone in all places. This is what we might call an objectivist account of justice. It is a moral truth. • Plato’s view is clearly objectivist since he claims that justice is a realisable ideal, founded on the ultimate reality: Goodness itself. Thus, for Plato, justice cannot ever change or be denied; it is a philosophical truth. • Christian views may also be regarded as objectivist, although very different from Plato’s. For Christians, God is the source of all being and truth, and so His commands and His justice are fixed and real. There is no escaping from or denying God’s justice. Consider the idea of Final Judgement – it is universally applicable. Perhaps the most famous ethical objectivist is Immanuel Kant, with his deontological theory of the moral law. Kant thought that true maxims could be discerned through the application of the Categorical Imperative; if a principle could be universalised (applied to everyone), then it would pass the rational test. From the standpoint of justice, equity and fairness could be demanded as a part of the moral law. Moreover, societies should be organised around the idea of equal and inalienable rights; the moral law demands that these are bequeathed to everyone, since they are universally desirable.

John Rawls: A Theory of Justice “Justice denies that the loss of freedom for some is made right by a greater good shared by others.” • One of the best known modern justice theorists is John Rawls. He has argued against the Utilitarian outlook, that society should simply maximise happiness for the majority. This does not guarantee fairness or even individual rights. According to Rawls, justice has to be a tangible good – objective – and available to everyone equally. • Equal citizenship is a right for all in society and there should be no arbitrary advantage, taking advantage of power, wealth, or position within society. • A key concept for Rawls is that of ‘original position’. That is, we have to consider that no one knows his true place in society, or what the future holds. So, we must start out from the supposition that we could all potentially be the most dispossessed and unfortunate in society. We must thus ensure that no one is advantaged or disadvantaged by the system adopted. We act through a ‘veil of ignorance’. • Rawls also explains this in terms of the ‘maximin rule’ of game theory: the best approach is the one in which the least well off person has the least bad result. He has shifted the focus of justice onto the protection of the weak. “No one knows his place in society … nor does anyone know his fortune in the distribution of natural assets.”

Imagine the ‘original position’ • Imagine that you are a castaway on a desert island, in a group of several strangers. You have no resources beyond those on the island itself. You have no advantage of wealth, status, and no special legal protections. It is just you and the others. The possibility of a zero-advantage, zero-resource ‘original position’ has been realised. In this state, you and the others are obliged to find a way of living and organising yourself. How should you approach the following? • Distribution of the island’s resources (food, wood) • Dealing with the incapable: the very old, very young, and the sick • Responding to the differing qualities and productivity of labour: some it seems gather many coconuts, some gather very few.

Weaknesses of objective justice Although a strong ‘realist’ or ‘objective’ concept of justice has its obvious appeal, there are a number of problems which such an approach raises. Firstly, it might be claimed that the ideal of true justice is too metaphysical. It is a nice abstract notion, beyond our normal experiences, but there are not any compelling grounds to suppose that justice is ‘real’. We could appeal to Nietzsche, who argued that Plato’s objectivist ethics are just a cynical ploy to restrict people’s freedom. Secondly, objective justice might be dangerous; by giving absolute value to a certain order of society, it might encourage totalitarianism. Plato opposed democracy, because he favoured the rule of philosophical dictators. Kant’s objectivity could lead to a severe police state; as Peter Singer argues, Kant really encourages moral fanaticism.

Hobbes and Leviathan • Ideas of justice have always fluctuated through history, as a result of changes in society and political revolutions. This is very much the case when we consider the famous and controversial philosopher Thomas Hobbes (1588-1679). • Hobbes lived through the English Civil War and saw his country tear itself apart. In response to these events, he wrote a book about the just ordering of the state, which he called Leviathan (1651). Hobbes writes of the state as though it were a great man or monster (hence the name Leviathan, after the biblical beast); it consists of different parts working in unison for the sake of the whole. • Hobbes was appalled by the chaos of war, but saw this conflict as the natural state of mankind: “the war of all against all”. Without a strong government to protect us against our own human nature, life would be “solitary, poor, nasty, brutish, and short”. • So, Hobbes introduces the idea of a Commonwealth, a structure imposed on society for mutual protection. “THE final cause, end, or design of men (who naturally love liberty, and dominion over others) in the introduction of that restraint upon themselves, in which we see them live in Commonwealths, is the foresight of their own preservation, and of a more contented life thereby.”

Hobbes and relativism • Ultimately, Hobbes equates justice with the exercise of power by a strong ruler. Our state of nature is unjust or chaotic, and there is no abstract concept of true justice to which Hobbes appeals. • Hobbes therefore gives us what we might call a contract theory of justice. He regards government as an agreement among individuals not to hurt each other, since this serves their mutual self-interest. We are naturally selfish, and so we seek collective protection. This is not a duty, but a compromise. • We might regard Hobbes as starkly realistic, although some would say that his theory is cynical and negative. If we accept his moral relativism, then his approach to justice seems sound. • By denying the idea of natural or universal justice, Hobbes implies that justice cannot be fixed or absolute. This is a relativist view; all we can say is that different cultures and societies manifest varying views of ‘justice’. • In Leviathan, Hobbes tells us that we should avoid the state of nature, not because it is wrong in the absolute sense, but because it does not serve our own best interests.

Back on the island … Again, imagine that you are on the island without any resources, status, or special protections. You and a group of strangers are trying to survive and create some sort of order in your lives. One of the group members (Tom) seems to be a bit pessimistic about the chances of things going smoothly. It is only a matter of time, he argues, until people start fighting over food, and someone might even end up dead. Tom’s friend (Charlie) is tall, strong, and well educated. He also has the only gun on the island. Tom tells us that we should be governed by an island council, and Charlie will be the chairman. That’s our only chance to survive, he says. So, it’s decision time, but what are you and the others to think? … • Thank God for Tom and his theory! We’ll be much safer with Charlie and his gun in control. • There are plenty of coconuts, and everyone seems to be getting on fine. I think this is a bit of an over-reaction, but a council sounds cool. • I don’t trust Tom and Charlie; they are just trying to scare people into obeying them. We could have peace and justice if we all do our own thing.

Robert Nozick: entitlement and justice • A libertarian and critic of John Rawls, the philosopher Robert Nozick has argued in Anarchy, State and Utopia (1974) against the idea of universal justice, founded upon equality. Essentially, Nozick thinks that we should be able to keep our property, and it is unfair to expect us to give some of it up to help the poor. Justice should be seen in terms of entitlement to possessions. • If we have acquired something in a just manner, then it is ours. It is unrealistic to expect us to share it. We have no moral obligation to anyone other than ourselves. This means this is an individualist approach. Nozick also takes a relativist line, in that he does not see justice as an objective ideal, which society should conform to. If we all follow the law, we can chose for ourselves what a just use of our resources would be.

Weaknesses of relativist justice Although Nozick’s resistance to an ideological and rigidly structured society may seem like a sensible precaution, it is questionable whether such liberalism is of practical benefit. Many societies which re-distribute wealth perform well in measures of quality of life and satisfaction. Also, Nozick has not really dealt with Rawls’ point that we are all the potential victims of misfortune; we should treat the protection of the poor as an objective good, because it could potentially benefit everyone. Plato had already anticipated the arguments of figures like Hobbes, who claimed that justice lay in the hands of those wielding power. This ignores the real goods which Plato regarded as universal, ideas which were again emphasised by modern Platonists like Iris Murdoch. Surely there are some qualities which are favourable for all just individuals and societies: promoting knowledge and truth, beauty and art, and seeking the guidance of wisdom, rather than raw power.

What is punishment? • From the Latin punire: inflict a penalty, cause pain for an offence. Ideas about punishment come in many forms and have changed dramatically in western Europe over the last few centuries. Rehabilitation (Divine?) judgement Retribution Restoration / compensation Deterrence

How would you punish offenders in the following scenarios? • A 3rd former shows you ‘disrespect’ by criticising your dress sense. • A student misses a deadline for an essay, and then misses the extended deadline. • A tired driver (not on drugs/drink) crashes into your car, causing minor damage. • A drunk punches you in the pub, knocking out two of your teeth. • A serial killer is caught, after the deaths of ten innocent people. • An insurance fraudster is caught, having defrauded £50,000 from a major international firm. • Robin Hood is caught at last, having spent a lifetime robbing from the rich and giving to the poor. • A serial rapist is caught, after 10 years of terrifying attacks. • You lied on your UCAS personal statement, and are discovered by your school (but not UCAS, yet).

Deterrence theory • Very simply, this is the view that we should punish people to deter others from committing crimes in the future. If I see that there is a 10 year sentence for armed robbery, I may think twice about committing such a crime. • Deterrence theory may be justified from a Utilitarian perspective, it is felt that the consequences of punishing criminals are beneficial for society as a whole. This may also be accepted from a relativist perspective, since punishment is not seen as a true objective standard but as something created to serve a practical need. • It could be seen as a moral compromise or necessity, as Charles Colson writes: “The primary purpose of criminal justice is to preserve order with the minimum infraction of individual liberty.” An ordered society needs visible warnings of the negative consequences which follow from crime. The philosopher Jeremy Bentham developed the slightly creepy idea of the ‘Panopticon’ – a perfect prison in which it was possible to spy on all the prisoners whenever desired. The invisible guards could never be detected and so the prisoners would assume that their actions were being observed. Although they would have no liberty, the possibility of persistent spying would prevent the prisoners from engaging in further unruly or criminal behaviour.

Weaknesses of deterrence • Deterrence theory has been criticised on a number of grounds as an approach to punishment. It could be argued that it fails on practical grounds. It does not work or perhaps even makes crime worse. C.L. Ten argues that punishment alienates people from society and so makes them more likely to commit a crime again. Meanwhile, Roger Crook notes that psychiatric studies show that the threat of punishment has no bearing upon people’s choice to commit serious crimes such as murder. • We could also question the rational choice assumed in this argument. Do criminals really weigh up the consequences of their actions before engaging in crime? • Finally, we could criticise the moral relativism of deterrence. Is it acceptable to mistreat or imprison people for the benefit of society? We should not ask whether prison works, but whether it is right.

Retribution theory may be supported on objectivist grounds, since ‘real’ or universal standards of behaviour might need to be enforced with absolute consistency. This approach is found in C.S. Lewis’ natural law argument in favour of retribution. Retribution theory • Retribution theory states that those guilty of a crime should be paid back for what they have done. It is like something ‘owed’ to the criminal in response. It is expressed most severely in the biblical Lex Talionis – “an eye for an eye, a tooth for a tooth”. • The philosopher James Rachels has argued in favour of retribution, stating that “people deserve to be treated in the same way that they have (voluntarily) treated others.” This principle shows us that we must treat others well to succeed ; it encourages us to see our actions in terms of reciprocity. • C.S. Lewis has also argued in favour of retribution on the basis of natural law. The idea of a clear and natural repayment for crime (‘just desserts’) means that a criminal can only be punished insofar as it is fair, rather than being at the mercy of a panel of experts: legalists and doctors who claim to act for the benefit of society. However, retribution may also be supported on subjectivist grounds: the view that our personal feelings and perceptions are the basis of our values. James Rachels supports retribution in terms of subjectivity: we live in a society based upon personal and emotional reciprocity. Retribution also “fits naturally with many people’s feelings.”

Weaknesses of Retribution • In religious terms, retribution becomes ambiguous in the light of teachings regarding mercy and forgiveness. In the New Testament, Jesus intervenes to prevent the punishment of a woman caught in adultery, while those saved by Jesus’ atoning death have their sins forgiven. Perhaps there is some merit in a more flexible and forgiving approach? • Key examples of retribution in the modern world (such as the death penalty for murder) do not seem to benefit society. There is no evidence to suggest that such retribution improves anybody’s lives or that it reduces crime. • C.L. Ten notes that retribution only applies to those who have deliberately broken the law, but it is questionable whether punishment can really work in this way. Surely it has to be clearly and consistently applied, regardless of people’s intentions. • Relativists might argue against both objective and subjective justifications of retribution, since both (mistakenly) attempt to universalise our non-rational responses to crimes in a series of supposedly fitting punishments. Post modern writers such as Michel Foucault have questioned the motivation of those wanting to punish wrong doers. Foucault explains punishment

Rehabilitation theory • Rehabilitation refers to the attempt to reform or improve a criminal. It may be founded upon the intrinsic worth of each human life, supposing that the improvement of every human life is desirable. • Rehabilitation might be justified upon relativist and consequentialist grounds; it does not attempt to right a wrong or impose a moral order, but rather strives to improve general life conditions on practical grounds. A Utilitarian might argue that it improves the quality of life within society (Bentham: “all punishment is mischief”). A Situationist meanwhile might argue that it promotes the most loving outcome. • However, a deontological and objectivist case for rehabilitation could also be made. If all human life is considered to be of equal, absolute, and intrinsic worth (e.g. Kant), then the reformation of character might come to the fore. Similarly, rehabilitation could be justified on Scriptural grounds (“do unto others …”). In England, the Quakers have been key advocates of rehabilitation and restoration in punishment, on theological and objectivist grounds. Quakers argue for the equal, absolute, and God-given worth of each human individual. A famous supporter of prison reform within the Quaker movement was Elizabeth Fry. She claimed that it was important to approach prisoners with mercy rather than condemnation. Fry based her support for rehabilitation upon the theological principle that there is hope for everyone.

Weaknesses of rehabilitation • A problem with rehabilitation might be that it takes away our dignity and responsibility for our actions. We behave as we do because we choose to and should be accountable, not simply seen as broken or ill. C.S. Lewis argued against the idea that criminality just needs to be ‘treated’. • Bernard Hoose has argued that punishment itself cannot reform, but rather the educational and psychiatric facilities within the penal system. It is questionable whether rehabilitation should be considered a punishment at all. Roger Crook accepts this: we should treat criminals, not punish them. • The relativist consequentialist argument in favour of rehabilitation may not work; over half of all criminals in the UK go on to re-offend (Times newspaper: 2005). The positive consequences of rehabilitation are unclear. • Objectivist claims of universal human dignity are of no comfort to the victims of crimes: how would they react to the restoration of a rapist or murderer? C.S. Lewis

How do we implement theories of justice through the law? The power of the state in Hobbes’ Leviathan The authority of philosophers in Plato’s Republic Law as counter-acting inequality (Rawls) Law as protection (Hobbes) The authority of the Bible in its teaching on justice. ‘Law’ ‘Authority’ Devised by philosopher kings (Plato) Law as protecting property rights (Nozick) The authority of the state in administering punishment What else might the examiner ask about? As a deterrent Be aware that the examiner could throw in some slightly tricky questions in terms of the following topics. You have plenty of information, but need to think carefully about how to apply it. The state as having absolute power over human life (Hobbes) ‘Capital punishment’ As retribution Considered in light of biblical teaching Critique from rehabilitation theory

Justice, Law, and Punishment