Writing Wednesday: A Question Regarding Justice
Or, on why we pursue justice
[editor’s note: Tumblr’s server failure yesterday prevented the publishing of my second Writing Wednesday post. After sending the post twice without seeing it pushed to the website, I gave up for a day. It was a blessing in disguise as I had time to think over what I wrote and refine it a little for today.]
The Problem Stated: The Hard Case
A friend wrote to me in an email the other day:
I have come to discover that ignorance was a blessing. While it is not noble to turn one’s back to the darkness and harshness of reality, sometimes it seems like the better option than trying to “save the world.” It will never be enough. We had been talking about justice, and how it is understood not only between fields—Political Philosophy and Law for instance—but also within a field or discipline. After making an attempt at explaining why we, that is, society as a whole, and individuals, still should pursue justice and let her ring throughout the world, I received a rebuttal of sort.
I’ll use the case of the 2 month old baby who was raped and killed. How do we go about seeking justice for her? As a prosecutor, we are seeking justice for the deceased, an innocent baby. But how do we make things “fair” when the baby has died. There is nothing we can do to bring the child back to life, so we seek a harsh punishment for an atrocious crime. Capital punishment is the most severe of crimes. So is putting a man to death justice for the innocent? And if we step outside our role as prosecutor, do we as humans, sinful beings, have the right to put another sinful being to death? But aside from this “moral evil” argument against capital punishment, is it just? Does this make the situation fair?
Step across the aisle to the defense table. What is justice now? As an attorney, your role is to “zealously” advocate your client’s interest. In this light, justice looks completely different from the “justice” being sought across the aisle on behalf of the baby. Rehabilitation, rather than capital punishment seems more just.
Now step outside the courtroom into the public arena. Rehabilitation for a man who raped and killed a baby seems far from just. The newspaper headlines will surely read “Rapist, Killer Walks Away,” if we don’t strap him down to the bed and inject his system with poisons that will take stop his heart.
But what the public does not see, is what the public defender sees and hears. For the man’s attorney knows his client’s past. He knows that his client was sexually abused by his uncle as a child. He knows that his client lived with his elderly grandparents because his mother walked away after years of drug abuse. He knows that his client was raised in a bad part of town where drugs and drive by shootings were common occurrences.
So we are left where we started; how do we achieve justice in this situation? There is no justice. We can seek rehabilitation but the public and talking pundits will call us out for letting a killer walk away. We can put him to death, but is that justice? Does putting him to death make things “fair.” He should not have raped and killed the child, but was it fair that his mother used drugs and left him. Was it fair that his uncle sexually abused him.
A tough case if there ever was one. Yet, even here I would contend that justice can be found. It is difficult, and seemingly impossible to say that justice will prevail. Consider the three parties: the victim, the criminal, and society. Each as a claim to justice that on first impression seems like it is contention with the others. A baby who is killed can never fully attain a just recompense because the child is dead. The criminal has a history of abuse himself, but has committed a heinous crime. And society demands that something—preferably the death penalty—be done about it.
What is Justice
Without realizing it, my friend touched on the three orders of justice mentioned in St. Thomas which are by products of the three basic relationships in society. Thomas calls them the order partium ad partes, or the relationship between two individuals, order totius ad partes (The relationship between society as a whole to the individual, and ordo partium ad totum, or the relationship between the individual and the society as a whole. Surely we can think of other more detailed relationships in a society, most likely outgrowths or combinations of the three basic arrangements listed. What the three relations above give us, however, is a basic framework for understanding how society works and a hint at the many forms of justice that are all present in society. From those relations we have three basic forms of justice: reciprocal (iustitia commutativa), ministering (iustitia distributiva), and general/legal (iustitia legalis/generalis*). [No more Latin today, I promise, —ed.]
It is easy to see how each of these basic conceptions of justice can have claim in society. The case as presented by my friend has a need for reciprocal justice, that is, a debt owed by the rapist to the dead child. We have a need to distribute justice to both the child and the rapist. And we have a debt owed to the society write large by the criminal. Rather than claim that there is no justice, I would argue that we have a lot of justice. What makes this scenario so difficult and heart-wrenching is that there is no way to fully restore the debt owed to the child, nor equally address the competing claims of justice equally. I will not presume to know a solution that addresses all claims here. What I do hope to bring to light is the difficult complexity to justice in a practical sense. In my (soon to be completed?) Master’s thesis I make mention of something James Madison wrote in The Federalist Papers. He wrote that “justice is the end of government.” This may be true, but the real difficult and source for most of our conflicts in civil society is the plain fact that simply agreeing on a beautiful virtue such as justice only works if we can agree on what justice is. The over simplified presentation of the basic forms of justice in St. Thomas only scratches the surface. What matters most is how we each respond to the difficulty in locating justice.
The Idealist and The Realist
To help illuminate the possible responses to the challenge of justice, let’s consider for a moment the two extremes, the idealist and the realist. [NB: For the political scientists out there, I do not mean these terms technical sense they are used within the discipline. Although the similarities will be apparent.]
One the one hand, we have the idealist. A radical. A fundamentalist, who demands justice and let the world be dammed. Think of the ardent pacifist who would rather millions die in genocide rather than lift one hand in violence, even if it is to protect the innocent. Think of the one who rejects the death penalty regardless of the crime committed because she views the taking of life as a moral evil in itself. These idealists have the vision of Plato’s kallipolis (the good city) and hold on to it as though it were the only covenant of man. A world without justice is not a world worth inhabiting. If we cannot see that, we do not deserve to inherit the great fortune that our forbearers made for us. Justice is the most pure stake in the ground by which we can find our way, and absent that we are lost. It is therefore best to ignore all else as simply substitution, or worse, subterfuge. If we know what justice is, why would we not pursue it. Any and all costs in the pursuit of justice are worthy sacrifices in the name of humanity.
The other tendency is that of a certain kind of realism. A realist knows that the idealist is a fool because there too many evils to overcome. Accept the world as it is, they tell us. Accept it not as is we wish it to be, but as it is. The task of bringing justice into the world is too great, the costs to high, and the result—if we are lucky to achieve it—too fragile for it to last. Better then to go about our lives, calculating what is in our interest. Assume that others will take advantage of you and realize that life is not a box chocolates. It is a dogfight to the end. The realist tells us that Plato lied to us. We ought instead follow the advice of Hobbes and Machiavelli. Only when we finally accept that life is nasty, brutish, and short do we lower the sights of our expectations and are able to pursue a life of material self-interest.
A Median of Justice
Anyone who takes the time follow the logic to its extreme of either tendency quickly realizes that alone, each is untenable; together, they create mutually opposed positions. Apathy quickly entertains the mind as a possible solution. Reject everything and just live life. This of course, is hardly a solution because the call of justice is too powerful for anyone who has considered it seriously. Rather than brush aside the idealist as naive, we should admire their resolve. Acknowledging the absolutes they present to us gives a road map, a guide, so to speak, to measure our current status and discern how we have improved, and how we haven’t. Nor should we dispatch our realist tendency outright. Realism asks us to see the world as it is, and we should. There are hard obstacles to justice, many of which for reasons of material scarcity, institutional inertia, or general malaise cannot be overcome. Their existence creates real constraints on what can be achieved in the world. A funny thing happens when we hold fast to both our idealism and realism. We are not overcome by the apparent paradox of contradiction. The ultimate shortcoming of both extremes is that each is simplifies the world too much. The reflective mind learns that the tension created by these tendencies brings to the fore the median of justice by which we can navigate a very complex world. Another way to think about this is to rethink Justice as a virtue. It should not be thought of as a goal or state of being to be attained. Justice is not an object to be had, but the north star of our morality which guides us through the complex matrix of an imperfect and perennial unjust world. Justice is object to be pursued, but it is also a way of living, and a roadmap.
The pursuit of Justice
I’m afraid that I have not yet discussed why we pursue justice in the first place. If we can only approximate justice, and if we have two tendencies regarding justice, one could argue that it is better to ignore the quest for justice. Live and let live. The hard case presented is enough to turn even the most ardent idealist into a cynical realist. Except that if we reflect a bit longer on it, we realize that it is also the perfect case to appeal to our pursuit of justice. Rather than look at the situation ahead and say that there is no justice, we can look at it and ask ourselves why we would discard justice at this point. If there was ever a case that both appealed to our poetic sense of nobility and our practical sense of fair play, this is the case. To be sure, it is not an easy case to address and we will, as had been said, only approximate justice in our actions, but the need for justice stands. As individuals we have to look at the heartbreaking facts and the almost insurmountable circumstances and begin to the best of our abilities administer justice to all the parties. Not all parties may be happy with the result, and that is ok because more important than achieving perfect justice is not giving up on justice.
