Justice, Law and the consequences.

This post has been prompted partly by a discussion on Tripp Fuller’s Homebrewed site about the legal and particularly the penal systems in the light of Dietrich Bonhoeffer’s theology and life. It’s a Q&A session from a recent course on Bonhoeffer, which I wasn’t subscribed to, but I think it stands on it’s own as a discussion. The source lecture is probably available on a “pay what you can” basis, as are all the Homebrewed courses at present when released.

I add to that the news that Ben Roberts-Smith, an Australian recipient of the Victoria Cross (which, for those outside the Commonwealth, is the supreme award for bravery given rarely by the British monarch and virtually never awarded these days to anyone who survives their act of heroism) has been found by an Australian civil court to very probably have been guilty of a number of civilian deaths (which would rank as war crimes if proved in a criminal court), and watching pictures of the former presenter of ITV’s “This Morning” programme, Philip Schofield, talking about how the revelation of an affair with a younger male ITV employee which he had previously denied had ended his career. Schofield is right to say that there is almost certainly no way back for him after that; similarly I doubt there is any way back for Roberts-Smith. Millions of people had looked up to both those men (obviously for totally different reasons), and the venom people express towards their former heroes who are found to have feet of clay is well known.

I hasten to say that it is not a collossal surprise to me to find that the man who exhibited heroism in a war situation was also guilty of atrocities – we create elite soldiers as killing machines, and are happy as long as we are at war and “need” them, and scandalised when they turn out not to be able to turn those impulses off on command (notably when their services are no longer needed, though that is not the case with Roberts-Smith). Nor is it a surprise to find that an extremely capable and engaging TV host and theatre performer was guilty of sexual misconduct (in my eyes, possibly only misconduct because he was married) and covered it up – particularly as it was a same sex liaison with suspicions of abuse of a dominant position (if not actually grooming, given they met when the other employee was 15 and Schofield suggested work experience at ITV). Schofield denies that anything improper occurred until the man was 20, and I have no reason to disbelieve that, though many might – on the basis that if he lied about one thing, he “is a liar”. There is still a slur over homosexuality in the UK, particularly when someone has denied their leanings and is, like Schofield, married with adult daughters.

The Homebrewed discussion is very strong on the principle that people should not be judged purely for what they did on their worst day, and that “the crime” does not define the person – indeed, it may be a very small part of a complex character much of which may be on the whole good.That, I like a lot. And, of course, Christianity is a religion of forgiveness – including enemies.

I do however take issue with Tripp’s comment (which I think he borrowed from Dom Crossan) that the function of the law is not to deliver justice but to obstruct justice. I spent 30 years of my life as a practising lawyer, and can attest that the vast majority of my fellow lawyers saw themselves as trying to get the law to deliver something like justice. The thing is, it is eminently the case that the law is not, in and of itself, just. At best it is an attempt by human beings to create a system which is predictable and which delivers something approaching justice (and avoids people descending to violence or escalating it), but of course at worst it is a system which perpetuates the status quo. Indeed, the earliest instances of law I am aware of (in Babylon) involve the protection of property (without heed to whether that property was entirely ethically obtained, for instance through the exploitation of others) as well as the protection of life and the prevention of physical harm to others. And, of course, the need to pay taxes. I resonate far more with Derrida’s observation that justice is an “undeconstructible” principle, and that we are never going to achieve justice – the best we can do is work toward it.

I worry too about any decrying of law coming from Christian theologians. Jesus said that the Law (of Moses) would stand “until heaven and earth passed away”. OK, he also said “until all is accomplished”, which Christians have been taking as meaning you can throw away the Mosaic Law once Christ had been resurrected, but I don’t think he meant that – it is, after all, hardly the case that heaven and earth have passed away. It smacks of supersessionism, the idea that Christianity replaces Judaism which, with the Law as a whole, is now outmoded, superseded – if, indeed, it was ever valid (which some passages from Paul, notably much of his argument in Romans, might be taken to indicate). It is, frankly, inconceivable to me that the Almighty might lay down a code of conduct for his chosen people which is in its entirety capable of being superseded,  saving the fact that some of it is clearly context-dependent. Paul suggested it was designed to increase sin in Romans 2-3, and, indeed, both that it is impossible to keep the law (despite the fact that many Jews of my acquaintance are confident of being super-compliant with the law) and that without the law there would actually be no sin, which would scandalise every ethicist I know who is not a deontologist. Which, thinking about it, is all of them!

OK, I accept that there is a tendency in humans to see prohibitions and want to contravene them – without a “do not walk on the grass”, some people, at least, wouldn’t be tempted to walk on the grass. Psychoanalysts seem very keen on this mechanism. For me, it’s a childish or adolescent phase to do so, one in which all boundaries must be pushed, and adults commonly don’t do that. Maybe Paul was a proto-psychoanalyst? Personally, as no great friend of Paul, I suspect he was taking from a position of arrested development, whether or not he actually suffered from that personally.

What I think may well have been behind Dom’s and Tripp’s attitude is that the law in the US (and in most of the rest of the world) does not focus either on restorative justice or on distributive justice. I’ll come back to those.

We have, I think, to try to accept the principle that the law must be upheld in any reasonably functioning society¹. Anarchism is superficially attractive, but as far as I can see unworkable in any sizeable group, though I do sometimes ask myself when reading the synoptic gospels whether Jesus might have had an anarchist streak to him (although he may just have thought, with Jeremiah, that the law would in the future be written on people’s hearts and thus not need enforcement). Without law, the main foundation of civil society vanishes, though it may not quite be Hobbe’s vision of life being “solitary, poor, nasty, brutish, and short.” In that context, I can criticise the systems we have in both the US and the UK not just for ignoring restoration and distribution but also for being sufficiently complicated that to a significant extent you “get the best law you can pay for” (he or she who has the best lawyers very often wins regardless of the merits of the case, and the best lawyers are often but not always the most expensive). Sadly, this is largely a function of the way the law develops. Legislators come up with a form of wording which is designed to prevent some behaviour. Judges look to apply that, and find that in the peculiar circumstances of the case in front of them, that produces an injustice, so they find an additional principle which exculpates the potential victim of the injustice. But that principle is applied in a later case and produces a different injustice, so the law gets complicated once more (it matters little whether it’s the judges who make the change or whether it’s later legislators trying to repair the system).²

The Homebrewed panel also discuss the fact that we do not work on the basis that punishment “pays ones debt to society”. Actually, once one has a criminal record, that removes the possibility of many occupations as well as making it extremely difficult to obtain employment in others – in the US, one is “a felon” for life. In the UK, one “has a record”, and while we have a thing called the Rehabilitation of Offenders Act which is supposed to wipe the slate clean after some years, it does not – particularly in respect of things like insurance and credit. And, of course, in the minds of the police, who will always focus more on the person “with a record” than on those who have no convictions. I’m sure it wasn’t designed that way, but the net effect is that someone with a criminal record may find themselves with no possibilities for earning money other than criminal ones, thus underlining the finality of judging on the basis of what people did on their worst day.³

There are, of course, several reasons for imposing punishment on those who break the law (or, indeed, act contrary to the mores of society). One is retribution, which often seems to be key to the responses of victims and, indeed, society more generally – personally I fail to understand huge antagonism to someone who has not injured me personally, but many seem to feel that. Unfortunately, revenge is a poisonous motivation for the one seeking it, and seems fairly rarely if at all to be really satisfying to the victim. Harbouring a desire for revenge has been likened to drinking poison and expecting the other person to suffer – it is certainly corrosive. Far better, if you can actually do it, is to follow the Christian principle of forgiving (and keeping forgiving, seventy times seven if necessary).

Another is deterrence. The idea is that if people think about what the consequences of their criminal action might be, they will not do it for fear of being found out and punished. It is this which lies behind a lot of the clamour for more severe prison sentences, I believe. Unfortunately a common factor of most of those facing criminal conviction is (in my fairly extensive experience) that they did not expect to get caught, or didn’t think about consequences at all (crimes of passion, for instance) so deterrence was totally ineffective. OK, I have also talked with a few career criminals for whom the possible punishment is a potential “cost of doing business”, and in those cases deterrence might actually work to an extent. I fancy that that lies behind the reluctance of many criminals in the UK to use guns – the sentence here is massively increased if guns are involved. (The career criminal is also likely to be so used to prison that it isn’t as distasteful or terrifying to them as it would be to most of us.)

Outright prevention is another. This one actually works sometimes – people who are imprisoned, for instance, are not committing crimes in normal society (though they may be doing just that in prison). There, I’m recalling a conversation with a couple of the detectives from our local police station some years ago. They had managed to get a conviction of an extremely prolific 17 year old burglar with a custodial sentence (the first time the magistrates had been persuaded to imprison him) the previous year, and the rate of burglaries in the area had dropped by 75%. Of course, that only worked until his release! It seems to me that this might be at the root of US “three strikes and you’re out” provisions, which have only the downsides that firstly life imprisonment for (say) a trivial theft just seems totally disproportionate and secondly that locking someone up actually costs a very large amount of money. It costs a fairly large amount even if (as in the States) you force prisoners to work for peanuts (the “prison-industrial complex”) which, to me, offends my instincts against slavery and also risks major undercutting of prices which can be achieved outside the system, having subsidised labour – and thus penalising workers outside the system. For what it’s worth, while the UK prison system hugely incentivises prisoners working, the system is generally at pains not to compete unfairly with the free market.

It is, I have to concede, potentially effective to have a death penalty in this regard – those who are dead are not going to reoffend. Quite apart from the fact that after you are dead, an appeal against conviction is rather pointless, and far too high a percentage of convictions are unsafe (some have estimated as many as 30% in the UK), this offends my ethics as a Christian and a member of the Anglican Church, which is the established church of the country (and so whose ethics ought to have some bearing on our laws). I am against killing people more or less regardless of the circumstances, and massively oppose my country doing it “on my behalf”. (Incidentally, if anyone wishes to bring up abortion here, please see these posts.) I do include wars – I’m not happy that my country keeps involving itself in them, or that armaments is a major export industry for us. There, however, I don’t expect “not in my name” to have any real traction.

I could probably get behind a penal system which concentrated on reforming and educating the prisoner. There are countries which try very hard to achieve this, and on the whole I believe their approach works, or at least works better for society than no attempt at all. Sadly, neither my country or the States seem to be among them (mine gives lip service to educating prisoners, but little more than that). There are people who do not benefit from this approach, of course, though I do wonder whether some form of intensive psychological intervention might catch some of those (and one always has to consider whether the cost of the exercise is warranted).

However, what I eventually come down to as a “fair” system is one which largely aims at restitution. Sometimes that is impossible (murder is the most obvious example, and also often someone who has caused harm does not have the resources to compensate fairly), but for a very wide range of offences and situations, it is entirely possible and has the huge “plus” of putting the victim back as nearly as possible in the position they would have been in had the crime not occurred. Even a genuine attempt to make some restitution, even if inadequate, seems to be very acceptable to many. Most of the systems of criminal law which aim at retribution, deterrence or prevention just ignore the victim. Civil law does, of course, attempt to compensate people for injury on the basis of restitution, though it is generally really bad at assessing fair compensation. In some places (the USA, with its Jury trials of civil matters, for instance) the figures awarded are ridiculously large; in others (and I have in mind looking at possible compensation in the Greek courts some years ago) the figures available are stupidly small. That said, civil law systems do something there which criminal law systems often do not. OK, yes, the UK has a system of “criminal injuries compensation”, which is not funded by offenders, but ostensibly aims at making some restitution. I found the awards made under that system laughably small, however.

Sometimes, of course, restitution is the wrong answer; I have in mind the originating crime of Valjean in “Les Miserables”, which is the theft of a loaf of bread by a man whose family is starving. In effect, he receives a life sentence – although released after 20 years, he’s still on parole for life. In conscience, I look at a situation where one person has ample bread and the person next to them is starving, and, using the principle of distributive justice, consider that the real wrongdoer here is the one who does not gladly give his loaf to the starving (within reason, of course) – and I have in mind the Abbé in Les Mis, and the effect of his generosity and mercy. Consider here also Jesus’ injunction to the rich young man. I’m minded also of the story of the granaries. I can’t see how any legal system with which I’m familiar would adopt distributive justice, however (except using the discretion of magistrates and judges to mitigate penalties); that has to be a function of the State more generally. And, to my mind, no state in which some of its citizens consistently go hungry or homeless† can call itself civilised, let alone a “Christian nation”.

To summarise, when a wrong is committed, our first avenue should be to put right, as nearly as possible, that wrong – i.e. restitution. By and large, we don’t do that.

Secondly, we should look to prevent it happening again. As I’ve outlined, locking the offender up is effective, but costly, and unless you’re prepared to see a significant proportion of your population in jail for life (which it sometimes seems to me is the case in the USA), that has a limited time of efficacy. Capital punishment is also effective, but morally dubious even if you ignore the number of wrongful convictions our systems seem to manage. Deterrence is ineffective in most cases. What would be beneficial is to use a combination of education and behavioural modification, coupled with putting ex-offenders into viable work on their release. But we also largely don’t do that.

What we do do is double down on punishment, i.e. retribution. And that, I’d argue, damages us more than it damages the offenders, even if we’re ethically comfortable with it – which I’m not.


¹ Yes, there are laws which I consider grossly unjust, and yes, I support breaking those laws as an act of civil disobedience (the recently introduced laws which prevent many forms of public protest in the UK are a prime example) – but I also think that when you do break those laws, you should not complain about being punished.
² It is worth noting that the same kind of principles operate in the expansion of Jewish law from 613 mitzvot in the Torah to something occupying many volumes.
³ It is illustrative of this mechanism that a man who as a youth, when very drunk, peed into a public fountain, acquired a conviction for “exposing himlf in a public place”, which is sufficient to put him on the sexual offences register and prevent him doing anything involving children for life.
† OK, with an exception for a very few who make an informed choice to be homeless, not those whose mental illnesses make the choice for them.