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December 4, 2011 / theslowblitz

The Justice System

Isolation, deterrence, rehabilitation and catharsis. Those are the four principles that guide our justice system. Underlying these four principles is telos, or the idea that justice means delivering the deserving end to members of society.

We only isolate those who have commited wrong. We find it immoral to punish an innocent for the sake of deterrence. We rehabilitate because we believe everyone deserves a second chance. Catharsis only arises when the guilty are punished.

Whether a man deserves punishment then becomes a very important question for society, and we recognize it as such. We dedicate some of the best brains in society to determining whether a man is innocent or guilty. We take care to separate the judicial system from politics. We severely punish those within the system who accept bribes.

Yet, we assume that the man who commited the crime is the same man standing trial. We believe that the very act of being caught changed nothing, even if, instead of laughing at the impotency of the justice system, he now fears the police and loathes the crime he has commited. Physically, he has aged. The tissues in his body have since broken down and reformed millions of times. It seems difficult, if not impossible, to prove the man’s continued existence, and hence his deservement of punishment.

On some level, we recognize this. If you show guilt when standing trial, you are likely to receive a lighter sentence, by virtue of being less deserving of greater punishment. I feel this misses the point. Before you may decide how much punishment to dole out, it is necessary to determine whether you are deserving of punishment in the first place. It seems that in the current justice system, as long as ‘you’ have commited the crime, you deserve some punishment, even if the concept of ‘you’ is unclear.

I doubt that our definition of ‘you’ begins from a rational or moral high ground. For me, ‘you’ only exist as long as your body exists. ‘You’ are your name, face and history. While it is true that I cannot prove this, we may only describe another person in such terms. Try imagining a person without a these traits. It works both ways. Given a name, face and history, even imaginary characters come to life.

Perception is often wrong, and varies between person. In judicial decisions we refer to moral law, not personal opinion. In determining a continuity between bodily entities, i.e. a person, exists without justifying the decision, we are doing exactly that.     

Even if the man commiting a crime and the man standing trial are the same person, ‘he’ did not commit the crime. His brain did. If, in a spastic fit, a man stabbed and killed his wife, we would not hold him responsible. He did not have mens rea, or the intention to act. Yet, we would deem the man who stabbed and killed his wife in a fit of anger a murderer His state of mind does not excuse him from the act – even if the same argument seemed fine a moment ago.

An explanation could be thus: the man who acted in a spastic fit could not control himself while the man who acted in anger could have. I believe this explanation attributes too much power to the will of men. It puts man above all else, a free mover in a world of causality. I find this highly improbable; neuroscience has proclaimed the death of free will, with experiments showing our brains having made decisions before we are conscious of the fact.

We love being in control. For this reason, I suspect our justice system and even our society has evolved to promote the illusion of free will. We may choose to act in a moral manner, even if all incentives within a society are alligned with acting morally, as defined by the same society. Without choice, morality is an imposition we have evolved to circumvent.

Indeed, when the illusion does not exist, or has been lifted, criminality follows. The poor always find it more acceptable to steal from the rich. The London riots occurred in a time when individuals believed society favoured the rich. ‘We are being oppressed.’ There is no need to honour the morality of a society in such a circumstance.

How would a moral nihilist design the justice system? This is the question I have come to ask today. There are two conflicting ideas. Society must communicate to its members what is right and wrong. Even in agrarian societies it is necessary to exclude individuals who break societal norms. However, we cannot simply run roughshod over our conventional moral notion that only the morally responsible should be punished.

If the sole purpose of the justice system is to imprint in our minds the notions of right and wrong, then I believe the framework of our current justice system is adequate. We punish for the sake of associating certain actions with terrible consequences; so long as we are equipped to perceive the man who comitted the crime and the man standing trial as the same person, it does not matter that philosophical inspections reveal the flaws of perception.



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