The face of justice: accuser and accused
This post isn’t really about Kavanaugh and Ford, although obviously that’s the jumping-off spot. It’s about the larger issues that the controversy reflects, which have to do with the nature of justice.
Robert Frost (yes, that Robert Frost) had this to say on the subject (from a talk he gave at Bread Loaf in 1960):
Naturally there’s a constant natural conflict between justice and mercy. The big joke is that somebody on earth ought to balance them up. Probably God does. It could be assumed. That is the most Godlike thing: to balance them—mercy for justice or a just mercy. But there’s something there that’s almost too hard for a mortal man to get.
When I was a child I was very taken with these questions. That may sound unusual, but I don’t really think it is. Children (many children, at least) naturally want the world to be a just place. They want the guilty punished and the innocent rewarded. They want it to be easy to tell the difference. And they don’t want to wait decades to see it happen.
In fact, many children are so into the idea of justice that if bad things happen to them they imagine they must indeed be bad people. But that’s another topic for another time.
But justice and mercy are not usually easily balanced for most people, even children. Most people either fall into what I would call the prosecutor mentality, bent on punishing the perps, or the defense attorney mentality, bent on making sure the accused has the benefit of the doubt and is not railroaded into jail.
I was much more the victim in my life as a child. I was small, young, and a girl, surrounded by adults who were not necessarily all that kind, and older boys who were intent on teasing me and even hitting me quite often, and I was not strong enough to defend myself successfully although I constantly tried—really, on a daily basis. Now, that’s not the worst thing a child ever faced, but believe me it wasn’t an easy situation either.
Based on my situation, one would think I would grow up with the prosecutor mentality. But for some reason I grew up with the defense attorney mentality. I had a horror of false accusations—an absolute horror. In fact, one of my early heroes was Clarence Darrow (I wrote about him in this lengthy post), and when I went off to law school years later it was with the idea of becoming a defense attorney. Although Criminal Law and Evidence were indeed two of my favorite courses, I realized early on that I didn’t have the temperament (read: cojones) to become a defense attorney or even a trial attorney of any sort.
But I’ve never lost my outrage when people rush to judgment on the face of flimsy evidence. I think I am quite consistent as well, not just favoring those whose politics match mine but applying the same rules to all.
The Kavanaugh hearings have been another terrible manifestation of the fact that so many people are only too happy to rush to the attack of someone whose politics they don’t like, and to defend a person whose politics they do like, and to mouth pious and yet pernicious stupidities like “believe the women” or “believe the victims.” That way lies the end of our system of justice, which though flawed is one of the best if not the best ever developed by humankind.
In that same 1960 speech, Frost also said this:
The Democratic Party and the Republican Party are having quite a time about it right now. They both want to sound merciful enough, and they both want to sound just enough. They’re going to outdo each other in getting that right. The nice way is to choose the Democrats for being too merciful. Somebody calculated that the mercies that they promised the world were going to cost us about fifty billion dollars a year—if they did all they had in their program. The Republicans have got to sort of match that somewhere if they don’t get broke.
Frost correctly predicted that, in the effort to seem “nice” and counter the Democrats’ seeming niceness, the GOP would move to the left and end its own fiscal austerity. That’s indeed what happened.
Frost also says there that both parties were attempting to sound both merciful and just. That was probably true then, but it’s not true anymore—or rather, I observe that the Democrats have completely abandoned the “mercy” part of the equation where their political opponents are concerned. Or you might say that they’ve redefined “just” and “mercy” as being whatever they see as benefiting one of their protected classes/groups of people: women, minorities, everyone but white men.
Needless to say, that’s not justice. But it’s the new kind of “justice”—so-called “social justice.” See, they’ve even co-opted the word “justice.”
“I observe that the Democrats have completely abandoned the “just” part of the equation where their political opponents are concerned.” [Neo]
I think the Dems have abandoned the “mercy” part of the equation as well, at least for anyone not of their tribe.
As for justice, IMO many calls for justice, if not most, are really nothing more than thinly veiled call for vengeance. I know this sounds rather pessimistic and I don’t mean it to be, but I don’t think that most people really understand the concept of justice. It doesn’t have to do with punishing someone we feel should be punished. It has to do with being fair, honest, and equally applying the rules. Yet when was that ever true in any government? Even in the U.S., of any civilization in history we may have come closest to that ideal , but I’m hard pressed to say that is still true. The crooked timber of humanity and all that.
Well, it’s not that straight-forward.
My father was abusive. And I mean, really abusive. He even murdered one guy in cold blood and buried the body in the desert. That happened before I was born, and I think I’m the only person that heard that story. As far as I know, not even my mother knew.
I grew up with one single goal in mind: to be the opposite of my father. Later on, I figured out that people who come from those kind of families either repeat the pattern (and that’s quite the most frequent case), or move towards the very opposite. No middle land. At least for a while. As years go by, you make peace with yourself, and you slowly keep changing even when you’re not young anymore. I’d say that your political change could be very well part of it.
Yann:
I agree with the observation that one either becomes like one’s persecutors or becomes determined to be the opposite.
You may also be right that it’s an aspect of my political change. But I actually think my change was based more on better information than on any fundamental change. Looking back, I think the fundamentals have been consistent for me.
Neo,
I agree with fundamentals being consistent.
However… there’s a Jew proverb I love, ‘the path to Hell is paved with good intentions‘. And I think it describes one common big problem in modern left. I’d guess that your change towards being more conservative was related with forgiving yourself for dismissing those good intentions and to root deeply in those fundamentals, like the rule of law and judcial guarantees.
See the article by Daniel Moloney in First Things about 20 years ago on this subject. (He has revisited the subject several times since). Moloney offers this conception: ‘justice’ is the rule administered impartially by authorities compromised by original sin. ‘Mercy’ is the adaptation of the law to each individual case, something institutions manned by fallen human beings are commonly ill-equipped to do.
Art Deco:
I haven’t read the Moloney article, but it sounds like baloney to me.
First of all, what does original sin have to do with it? Second of all, it seems based on a misconception about how the legal system dispenses justice. The goal is impartiality, but that only means that, given the same fact circumstances, the judge or jury tries to give a similar verdict and penalty. But—and it’s a huge “but”—those “fact circumstances” vary in each instance. That’s what the administration of law is about, that’s what judges and juries do. They take into account all the vagaries of each case, or at least they should take it into account. And then, in the all-important sentencing phase, they take even more into account, including the history of the defendant as well as any mitigating factors.
That’s in part why mandatory “three strikes” laws are bad. They are also somewhat unusual in our system of justice.
Justice should never be person-based, in the sense of determining guilt or lack of guilt. To be fair it must be fact-based and evidence-based. The rules about that should apply to all equally, given the same facts (and the facts of course are never the same). But sentencing IS person-oriented. What is allowed into evidence in a sentence phase is often prohibited in the trial phase, and a sentence is tailored to the individual. The sentence can even be suspended. There’s a great deal of flexibility, ordinarily. Sometimes that is applied in an unfair way, of course. But mercy is built into the system, and the legal system is quite well-equipped to apply it. There is also the possibility of a pardon, another part of the legal system that encourages and facilitates mercy.
Yann, the origin of the phrase “The road to hell is paved with good intentions” appears to trace back to Bernard of Clairvaux, c. 1150 AD, and is not a Jewish proverb.
https://en.wikipedia.org/wiki/The_road_to_hell_is_paved_with_good_intentions
Neo, I tested high on the LSAT but decided not to go to law school because I don’t like arguing. Not the right temperament for a lawyer.
Human justice needs to be based on evidence. God’s justice, and God’s mercy, are another thing.
Some good lines from C.S. Lewis on justice and mercy:
First of all, what does original sin have to do with it? Second of all, it seems based on a misconception about how the legal system dispenses justice.
The man was a philosophy student, not a law student, and he wasn’t addressing the operations of the legal system at all. Although his argument might have some application in the realm of human relations generally, it was addressed to the theological understandings of his audience. First Things does have pieces on secular topics, but it was and is a religious publication. Mr. Moloney was for a time properly addressed as Dr. Moloney, and now as Fr. Moloney.
The Ford-Kavanaugh thing is what I called the “something nasty in the woodshed’ tactic – wherein someone hysterically insists on using some vague alleged trauma to themselves to control everyone around them.
https://chicagoboyz.net/archives/58145.html
Art Deco:
But it sounds like he was writing about law in this case. And it sounds like he doesn’t quite understand the system of law in this country.
By the way, I wrote in this post that I liked Evidence and Criminal Law when I was in law school. They were among the few courses in law school I DID like. But my favorite course was Jurisprudence, or Philosophy of Law. I enjoyed that immensely. I probably should have gone into that field, but it would have meant dealing with academia.
Also, in those days, there were virtually no female law professors. That’s how old I am.
“But I’ve never lost my outrage when people rush to judgment on the face of flimsy evidence. ” — Neo
Have you ever seen the old film, “Fury” on one man’s experience with a lynch mob and what he did to take vengeance on them?
To me, the most interesting part was the sequence of events by which the mob formed and decided that he was guilty – no need for a trial – because it is exactly what we are seeing in the MediaMobs today.
https://en.wikipedia.org/wiki/Fury_(1936_film)
I was convinced it was a Jewish proverb.
Thanks for the correction.
to Yann & Kate
via PowerLine’s pictures this week
https://i2.wp.com/www.powerlineblog.com/ed-assets/2018/09/IMG_0882.jpg?w=960&ssl=1
I had no idea that Lewis was such a great essayist. I read years ago ‘A Grief Observed’, I read the whole book while standing up in the Library’s aisle (I had no card). I just started and couldn’t put it back. It was that good. But I never checked whether he had other non-fiction writings. (I knew he was a Christian writer, but I didn’t know he wrote about ‘secular’ matters too).
I’ve found that the paragraph belongs to a short 7 pages essay. Do you know if there’s some good edition that gathers Lewis’ essays/short secular writings? (included this one). I’ve found a essay collection in amazon ( https://www.amazon.com/C-S-Lewis-Essay-Collection-Other-Pieces/dp/0006281575 ) but it seems discontinued. And I feel suddenly interested in his writings.
Yann – everything Lewis wrote was worth reading, although I did not personally care for his “SF” trilogy about Perelandra.
His nonfiction ranges from ancient classical literature through history and philosophy, but he is best known for Christian apologetics (not apologies: it means explanation and defense). Even his Narnia series of children’s books is a Christian exegesis in fictional form.
Here are a few titles:
The Screwtape Letters (the best known of his works to the secular public, because of the wit and humor of letters from a Senior Tempter in Hell to a Junior out in the world)
The Joyful Christian: 127 Readings from C. S. Lewis
Mere Christianity (“argues for the logical validity of Christianity, defends the religion from its critics, and looks in detail at what the life of a Christian is like.” – litcharts)
The Problem of Pain (“The existence of suffering in a world created by a good and almighty God”-Catholic book reviews)
The Great Divorce (“a classic Christian allegorical tale about a bus ride from hell to heaven. An extraordinary meditation upon good and evil.” – Amazon)
The Abolition of Man, or, Reflections on education with special reference to the teaching of English in the upper forms of schools.
Surprised by Joy (autobiographical “the book describes the author’s conversion to Christianity which had taken place 24 years earlier” – Wikipedia – he had been a humanist/agnostic/atheist for much of his adult life)
(“The book has no connection with Lewis’ unexpected marriage in later life to Joy Gresham. This marriage occurred long after the period described, though not long after the book was published. Lewis’ friends and contemporaries were not slow to notice the coincidence, frequently remarking that Lewis had really been “Surprised by Joy” — Wikipedia on his courtship and marriage, at a very late age, to an American divorcee with a child)
A Grief Observed (autobiographical reflections on bereavement, following the death of his wife) — yes, it is a riveting page-turner, but I think that’s true of most of his works.
AesopFan, thanks, I appreciate. I copied the list in my notebook and I’ll start with The Screwtape Letters.
True Talmudic saying on the subject reads like this: Those who are kind to the cruel, in the end will be cruel to the kind. See rishon-rishon.com/archives/044412.php
Another well-known saying, attributed to St. Athanasius, is that hell is paved with the skulls of bishops, but that’s for another thread …
Yet when was that ever true in any government? Even in the U.S., of any civilization in history we may have come closest to that ideal , but I’m hard pressed to say that is still true. The crooked timber of humanity and all that.
Back in 1857 and before, the Democrats and other American patriots decided to exterminate a religious minority sect called the Church of Jesus Christ of Latter Day Saints, who they Othered as Mormons.
It worked back then. No reason it can’t work for the rest now.
US history is nowhere near as sanitary as the MSM and the history books wrote.
Neo:
I am startled by your hostility to Art Deco’s comments on Moloney’s writing of 20 yrs ago, and your failure to address what Art Deco cited other than to condemn as “baloney”. That is Democratic Party-speak in its vicious dismissal, and is antithetical to all you hold dear.
One does not need to be Catholic or Christian to comprehend and appreciate that ALL humans are flawed when it comes to process and to judgment.
Yammer:
The Mountain Meadow Massacre wasn’t done by the Lutherans. or Catholics, or Baptists, or Mennonites. It was organized and carried out by the LDS (aka the Mormons).
In my opinion, this statement is deeply unfair. Moloney’s writing is aimed to religious people. And while there’s nothing wrong with it, you can’t expect everyone to be interested in his religious views. The concept of Justice in Western Philosophy has been built without original sins or divine laws.
Actually, if any, if something is close to how modern left speaks, that would be Moloney’s. Modern left is unable to understand Justice without appealing to some original sin. Of course, that case the original sin is about being white and male. But the concept is the same.
Cicero:
Perhaps you didn’t get the humor: Moloney, baloney. It’s a rhyme.
I also started out my comment to Art Deco by saying I had not read the article. I made that very clear. Therefore it also was clear that I was responding to Art Deco’s description of the Moloney article. Art Deco did not say that it was a religious article (until a later comment). As far as Art Deco’s description goes (the one I was responding to) the topic of the Moloney article was merely law and the philosophy of law, and on that level Moloney got things very very wrong, in my opinion.
That’s all clear from my comment to Art Deco. Go back and read it. I was not opining on Christianity or religion at all, much less with hostility. My only remark even remotely connected with religion was to say I didn’t know what original sin would have to do with law, a reasonable remark because Art Deco had mentioned original sin in his first comment on the subject.
I responded to Art Deco’s points at some length, actually. So your idea that I didn’t address what Art Deco cited is simply wrong. Now, if you’re saying I didn’t address whatever extra points Moloney had made in his original article, of course I didn’t. I was only responding to Art Deco’s summary of it, and I made that quite clear.
So it is your comment that is strangely hostile.
Neo:
I intended to convey deep disappointment in your reply to Art Deco.
Art Deco wrote in part “Moloney offers this conception: ‘justice’ is the rule administered impartially by authorities compromised by original sin. ‘Mercy’ is the adaptation of the law to each individual case, something institutions manned by fallen human beings are commonly ill-equipped to do.”
My point, and Art’s, is that all–all– humans are flawed; all, regardless of a belief in original sin or not. Original sin, a concept with which I am sure you are acquainted, is one explanation/belief in the origin of universal human imperfection. Therefore justice cannot ever be perfectly administered by men. Similarly, mercy, by institutions composed of flawed humans, is also imperfect in its administration (i.e., the granting of mercy).
And you went to law school!
I’m sorry for getting in the middle of the conversation again.
While the original sin can be considered as a metaphor for human imperfection, it’s (in my opinion) a dangerous metaphor. It focuses in some mythical cause, instead of our emotions and/or emotional state, self-denial, lack of intelligence, unfairness, personal and/or vested interests, personal interpretations, unreasonable beliefs or anything else that could be a cause of injustice. The concept of original sin links our imperfection to some religious myth, instead of our own behaviour. And while I usually admire the Judeo-Christian philosophic building, the concept of original sin is definitely one of its weakest points. You only need to see how Modern Left has adopted and updated the very same concept to that nefarious concept of being white and Westerner as a mythic sin and the cause of most evil.
I’d rather like the Jewish concept of ‘Righteous Men’ that sets a standard that cannot be reached by most men, accepting our imperfection but at the same time incentivating us to become better men.
Original sin is not a metaphor for human imperfection, or certainly not a universally-accepted one. For example, Jews believe in human imperfection, but they explicitly reject the doctrine of original sin.
Some background:
Yann:
Please do not call original sin a Judeo-Christian concept. It is not a Jewish concept at all (see my comment above).
Cicero:
You conveyed a great deal more than “deep disappointment.” You conveyed insults and a deep lack of understanding of what I had written.
And after reading my posts all these years you ought to know full well that I agree that legal institutions are imperfect and neither justice (nor mercy, for that matter) can be perfectly administered by humans. I never said a single thing that would indicate otherwise, and I’ve said plenty of things that agree with that.
What I wrote about Moloney and his idea of the justice system (as described by Art Deco) was as follows [emphasis added]:
The point is that the legal system is of course flawed, but its goals are to temper justice and mercy at different points in the process.
I didn’t. I mean, I didn’t include it as a Jewish concept, that’s why I said I’d rather like Jewish concepts regarding the imperfection of men.
Actually, the problem lies in how the term is defined. I understand it as the cultural foundations of western civilization, which is based in Helenism and Judaism but doesn’t include them. I just checked the wikipedia, and that’s how is defined in the Spanish version:
https://es.wikipedia.org/wiki/Civilización_judeocristiana
while the English one :
https://en.wikipedia.org/wiki/Judeo-Christian
and the French one:
https://fr.wikipedia.org/wiki/Judéo-christianisme
define it as a group that includes Christianism and Judaism. The Dutch wiki redirects it to a Dutch version of Messianic Judaism, though:
https://nl.wikipedia.org/wiki/Messiaanse_Beweging
https://en.wikipedia.org/wiki/Messianic_Judaism
Four languages, three different concepts for the same term. I feel curious about how is defined in the German wiki.
Yann:
It doesn’t matter how the term “Judeo-Christian” is defined.
Some concepts are in fact common to Judaism and Christianity, and they can rightly be called “Judeo-Christian.” But a concept that is explicitly rejected by Jews is NOT “Judeo-Christian” no matter how the term “Judeo-Christian” is defined.
For example, the Trinity is a Christian concept. The divinity of Christ is a Christian belief. And original sin is a Christian belief as well.
You had written the following, and that is what I was responding to:
That indicates that you are calling original sin a Judeo-Christian concept. It is not.
I’m afraid we’re gonna disagree there. How a term is defined is what matters.
I had a similar debate when it comes to ‘anti-semitic’. From my point of view, this is a very specific term with a very specific meaning. However, some people argue that Israel can be labeled as anti-semitic because Palestinians are semitic. And no, while the meaning of a term uses to be linked to its etymological origin, it doesn’t have to correlate exactly.
You can define ‘Judeo-Christian’ as a religious group including Christianism and Judaism, or you can define it as the religious foundation of Western Civilization. I’m not gonna argue which is or should be the definition. But, and here we probably disagree, both definitions should be possible, the word ‘judeo’ in the term not forcing Judaism to be included inside the concept defined.
Debates about terms are tricky.
Another example.This video (for some reason, youtube kept recommending it to me again and again) supposedly debunks Peterson argument about everyone being religious (with the exception of sociopaths).
https://www.youtube.com/watch?v=ZMhP59FnXgw
The key is that Peterson understands ‘religion’ as a moral framework that limits our behaviour. According to his view, a person that accepts the western moral framework can be called ‘Judeo-Christian’ no matter he’s not Christian or Jew (that’d be the case for most western Atheists). The guy in the video ‘debunks’ him because he only accepts a definition of religion which includes supernatural entities and religious rituals (and then examines Peterson statements’ using his own definition of the term, which is manipulative debate, but that’s another story)
Yann:
I thought it made it clear. I’ll try one more time.
I didn’t mean it never matters how the term “Judeo-Christian” is defined. I meant that no valid definition of the term can include as “Judeo-Christian” a belief that Jews have explicitly repudiated. Original sin is such a belief. It can never be “Judeo-Christian,” no matter how the term “Judeo-Christian” is defined.
There is no analogy with the term “anti-Semitism,” which has one very distinct and consistent meaning, which is “anti-Jewish.” I agree with you on that. Any attempt to give it any other meaning is sophistry.
I’m afraid I disagree.
Anarchism explicitly repudiates private property. Is it valid to define a term such as ‘anarcho-capitalism’ which explicitly embraces private property?
Yann:
If anarchists always explicitly repudiate private property, and the term “anarcho-capitalism” is used to describe something that embraces private property, than the term is an inaccurate misnomer and should be abandoned, and something more correct needs to be devised as a replacement.
Anarchism explicitly repudiates private property. The term ‘anarcho-capitalism’ was coined to define an ideology that is based in anarchism BUT accepts (and even embraces) private property. And it’s a widely accepted term. Is it valid? well…
Of course, anarchists say that anarcho-capitalists are not true anarchists. And they’re right: they’re not true anarchists, because they’re not anarchists. It’s based. It’s related. But it’s not the same.
And that can become even more complicated. Is national-socialism a nationalist ideology? Is it a socialist ideology?. The left will focus in the word ‘nationalist’ while dismissing the ‘socialist’ one arguing they’re not true socialists. The alt-right will focus in the ‘socialist’ one while dismissing the ‘nationalist’ one arguing they’re not true nationalists. Start a debate on that subject and fun will be guaranteed.