From: mss2@quads.uchicago.edu (Michael S. Schiffer)
Subject: Justice (was Re: Humor)
Reply-To: mss2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Wed, 16 Dec 1992 02:23:22 GMT

In article <1992Dec15.215708.15416@onetouch.COM> jpalmer@onetouch.COM (John Palmer) writes:
>mss2@kimbark.uchicago.edu (Michael S. Schiffer) writes:

>>In article <1992Dec14.163404.18923@onetouch.COM> jpalmer@onetouch.COM (John Palmer) writes:

>>>punishments. . . why do they call it a 'justice system' instead of a
>>>'systematic process to exact revenge against those who do not follow our
>>>arbitrary legal code'?)

>>	"For the same reason that the US Constitution guarantees
>>`freedom of speech' or rights to `life, liberty, and property' rather
>>than `our imperfect and often arbitrary wishes'.  

>    Ooops. . .I forgot to include lots of smileys to imply cynical sarcasm or
>sarcastic cyncism. ..  sorry about that.  

	"And I'm sorry for missing the implication-- I'm usually
better at catching both sarcasm and cynicism.  I think I'll claim
finals pressures.  Who knows, it may be true.  :-)"

>    I have gone on record as saying that we don't have a justice system, we
>have a revenge system, and I stand by that. . . but I do agree that we would
>try to find 'justice' if we had any idea what it was.

	"I do think that we have some idea what it is, and that our
judicial system is intended to bear some relation to actual justice.
But it's quite true that our best approximations are only that, and
that the system itself functions below par.  For that matter, some of
the design elements are created with that in mind-- the ideas of
"proof beyond reasonable doubt" and "innocent until proven guilty" are
essentially concessions that the system is going to work poorly.  If
we thought it worked well, then we could convict people on a
preponderance of the evidence, since in those cases there's more
evidence saying the person is guilty than that she's innocent.  But
the law biases the system so that it will free guilty people, because
those who framed it believed that it was a choice between letting the
guilty free and punishing innocents, and considered the latter worse.
(I agree with them.)  The choice of punishing all the guilty and
freeing all the innocent wasn't believed to exist.  Similarly,
sentences are approximations of what the criminal "deserves".

	Possibly a particularly malicious vandal deserves a lifetime
behind bars for, say, destroying a particularly beautiful and unique
artwork because he enjoys the suffering he inflicts on others that
way.  But we don't trust judges with that kind of power, because the
vast majority of vandals don't deserve it.  Note that again, the
system is biased in favor of errors of leniency-- a judge might
suspend a sentence for someone who really deserves punishment (in
whatever sense one might deserve it) but no judge can order a thief
executed.  (Other systems, in other times, biased things the other
way.  England prior to the 19th century, for one example.  The Chinese
Legalist school even had a theoretical basis for this, arguing that if
punishment were universally severe, no one would risk it, and thus few
would ever actually have to face the punishment.  I don't think the
theory holds and would object for other reasons if it did, but
Legalist thought was one of the stronger strains of political theory
in Chinese history.)

	"And still, innocent people _do_ go to jail, and many, many
guilty people walk the streets freely.  And many of the laws are
unjust laws, or laws with unjust punishments.  	It's a highly
imperfect system.  But the question is when a name becomes a mockery.
The Western democracies are imperfect democracies, but most users of
the language have no trouble applying the term "democracy" to them.
The old "People's Democracies" were a different matter.  Most things
we call "white" are actually somewhat off a pure white, but there
comes a point where it's no longer white but gray, or beige, or some
other color, and a point beyond that where it's black (though not pure
black).  Maybe our justice system has reached that point.  I don't
think so, but I admit I wouldn't want to have to go through it, even
if I were absolutely innocent of wrongdoing and fairly confident of
proving it.  Then again, I think it beats trial by ordeal and absolute
monarchical justice, but that's not saying much."


Michael
-- 
Michael S. Schiffer, LHN, FCS	"Indeed I tremble for my country
mss2@midway.uchicago.edu	 when I reflect that God is just."
mike.schiffer@um.cc.umich.edu	 -- Thomas Jefferson, Notes on
mschiffer@aal.itd.umich.edu	    Virginia (1784)
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