Everybody now is an expert on the complexities of the philosophy of justice. The 3-year-old has always been capable of declaiming “That’s not fair!”; only now does every second adult use the same tone of voice in commenting on matters of justice, whether criminal, civil, or political.
If we are to begin to work our way out of the philosophic morass surrounding crime and punishment, property law and civil recompense, political liabilities, and every other topic relating to “civic responsibility”, then we must first provide a definition, an organising principle, and then practically consider the working out of that definition. This I intend to do here, though only briefly for now.
The nigh-universal definition of “justice” is encapsulated in the term “to each his own”. Each person should receive their due; wages in accordance with the value of their work, civil protection according to their natural dignity, and so forth. It is unjust to deprive someone of something they deserve or have earned; it is unjust to accumulate for yourself via deceit or theft.
Implicit in the idea of “to each his own” is that there is a matter of measure in justice. Justice is not a means of providing infinite things to people – justice is intended to secure the right measure of reward (or punishment) to people. If someone works for an hour, they ought to receive a just wage for that hour – and even the most ardent Marxist is not proposing that an hour of shovelling snow should equate to the buying power of purchasing a yacht. (The most ardent Marxist, in power, usually ends up concluding that yachts ought not be available to the average snow shoveller, even in theory.)
Justice must be measured, according to the right or wrong of the individual – that it, it must be in proportion to the original act. To use a scientific neologism, “for every action, there is a equal and opposite reaction”. Newton (or nature) was only, really, emulating the divine Law of Moses – “an eye for an eye, a tooth for a tooth”. When it comes to matters of punitive justice, then, the punishment must fit the crime.
(A brief diversion for my Christian readers – no, Our Lord did not abolish the lex talionis in civic matters. Matthew 5.38-42 and parallels are directed at private individuals hearing Jesus – hence why the prospect of being sued is raised, but not the subject of military action. Jesus elsewhere articulates the “sphere of Caesar”, those matters over which the state has proper power.)
Before I proceed to offer some examples of how a judicial code based on such a principle would work, two additional observations are necessary.
Firstly: Naturally, when turning to the active “arm of the state” in justice, I have focussed on “negative justice”, in the sense that punishment is involved – but this is only the practical companion to “positive justice”. Positive justice might choose to in some way protect wage levels, and that is easily conceived of as positive; but positive justice also guarantees life and liberty, and it guarantees them by the use of punitive justice. “Steal from your neighbour, and you will pay them back and more” – that is how the right to property is guaranteed, not by polite request.
Secondly: Even punitive justice is “positive” in one sense for the one punished. Indeed, punitive justice is restorative. It is why we say a criminal at the end of a sentence has “paid his debt to society”. It is on this basis that Weil says that punishment – even the death penalty – restores the criminal to the pale of civilised society. Their crime (or civil wrongdoing) puts them outside the pale; as they are an egregiously bad neighbour, no-one can accept them for a neighbour; but the murderer mounting the steps of the gallows has become a neighbour again. They are submitted to the process of peacemaking we have adopted as a society, and come out in a state of objective peace with society – though they only reap the benefits of that peace by acceptance.
Now, what might be included in a judicial code that actually observed this principle of proportion? I will offer three examples, and then briefly draw general conclusions from them.
MURDER. Unless there be exceptional mitigating circumstances – and obviously excluding self-defence – unlawful killing in sound mind must be punished by execution. A life is paid for by a life. We resolve on this penalty because this is the proportional payment for the actual crime; if we dealt only with extrapolations, we might give murder a financial penalty paid in lieu to the victim’s family, and so on. But murder effaces life without any cover of sombre justice, or the lawful power of states; it declares life merely another commodity to dispose with as the wicked see fit. The only right punishment is the sword, dealt by the swift hand of the magistrate. In cases with severe mitigating circumstances, some other punishment must be found that fits the crime. The most obvious example is exile – whereby the murderer is, in a fitting irony, restored to civil society by his exclusion. In either case, some financial recompense could still be rendered from the murderer’s estate.
THEFT. Theft involves the loss of possessions, and therefore of – additionally – dignity, security, and, occasionally, further earning potential. The punishment must fit the crime. The crime has not cost a life, and so ought not require a life; nor has it permanently removed a limb, even metaphorically, and therefore hand-chopping is disqualified; and there is nothing more ridiculous as a punishment for theft than imprisonment. A man steals from a private citizen – his punishment is to be detained by the state, rendered unproductive, and usually costing the private citizen more money in tax. Imprisonment might be a fit penalty for kidnapping, but hardly for theft – it is disproportionate, humiliating the criminal and rendering them useless, and failing to give restitution to the victim. Instead, the thief ought to pay back the item stolen, or the equivalent value, plus “interest” – in recognition of the corollary damage.
ASSAULT. How do we deal with physical violence that does not cause death? We cannot justly hang the inveterate brawler. Neither can we trivially calculate his debt plus interest. Two routes are left open: either a modified form of debt punishment, or corporal punishment. By the latter we mean flogging or similar – some form of physical punishment to fit the crime. However, I incline to treating assault (without intent to kill) as open to full financial restitution. The victim has been disadvantaged, even if only temporarily, by pain, discomfort, psychological trauma, and so forth; the criminal owes them a debt, and the victim may directly enjoy repayment. The criminal has not effaced life, but dignity and security; let him repay in those categories. Of course, the two punishments (flogging and debt repayment) might be combined.
One objection may be raised and answered here: what if a criminal does not have the means to repay a debt? A vagrant might break in to a house and steal something – but by definition has no visible means to support themselves. Well, debt repayment forms a sort of indenture anyway, in all cases, and so such thieves must be given the means of repayment – work. This could be by the dreaded adult workhouse, but more properly might be found in a large patchwork of small-scale schemes, apprenticeships, sustainable farms, and so forth. Indeed, this would not only allow repayment of debts, but provide training for real and meaningful jobs – and a part of such a scheme could even reserve a portion of the thief’s pay in savings for when they complete their working sentence, to give them a headstart in their new life.
The principles we have outlined can be more broadly applied – rapists and paedophiles deserve death, because their crimes efface life in the most heinous ways, even if they do not end life; fraud and property damage are forms of theft; treason seeks to murder the polis itself, and the rope is the only restorative for traitors (“Nothing so became him in life as the leaving of it”). What is more, such a code would achieve an enormous corollary benefit, providing great benefits to the state and people: retaining the productivity of most criminals rather than ending it, and virtually abolishing prisons. The moral degradation of petty criminals in prison would be ended, their future prospects improved, and their social shame limited. If we could find the stomach to hang a few predators and traitors, by the same measure we would render our populace more settled and offer real restoration and hope to the vast majority of criminals. Where we may find such courage is the question.
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