What is Justice?
As I recall, the opening scene of the 2005 movie “Pierrepoint: The Last Hangman” see a woman who had been executed, hanged, removed from the hangman’s rope and prepared for burial.
The care, the gentleness of that scene belies the violence of the death which had been ordered as punishment for murder. When asked why such care was taken with the body, how it was dignified, shown such respect, the hangman, Albert Pierrepoint, played by Timothy Spall, explained that the punishment had been carried out, justice had been served. As such the woman’s dignity, for the burial, is restored.
Justice: is it ‘an eye for an eye’, as explained in the book of Exodus, “But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe” (Exodus 21:23-25), or is justice served as we find in the book of Matthew, “You have heard that it was said, ‘Eye for eye, and tooth for tooth’. But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.” (Matt 5:38-40).
Here is a definition of justice. Does this seem reasonable?
“Justice is the ethical, philosophical idea that people are to be treated impartially, fairly, properly and reasonably by the law and the arbiters of the law, that laws are to ensure that no harm befalls another and that where harm is alleged, a remedial action is taken – both the accuser and accused receive a morally right consequence merited by their actions.” (Cornell Law School Legal Information Institute)
How do we arrive at a ‘morally right consequence’ which is fair to both the perpetrator and the victim? Is justice served through revenge or vengeance or is there more to it?
Instead of satisfying a sense of morality, should the consequence be measured on an ethical basis? And how would that be different?
The destruction of Gaza and the year-long war which now envelopes Israel and Lebanon and threatens to spread to include other countries, is that justice for the horrors, the war crime committed by Hamas of October 7 last year, or is in an act of vengeance, going well beyond any sense of justice where it appears there is the collective punishment of those Palestinians who live in Hamas controlled Gaza?
But justice works at less dramatic levels too, less destructive, where an injury is done, a theft committed, an ego dented. So what constitutes ‘Justice’?
A teenager in youth detention suicides and through both the grieving process of the child’s family and the Coronial enquiry into the death, the parents and the legal system are seeking a sense of justice which includes a claim for a settlement payment of several million dollars.
One of the cases described in Dexter Dias’s book, “The Ten Types of Humans” tells of a young boy who was killed while in youth detention in Britain. The description follows the boy’s movements, silently on the video cameras in the facility, and also the guards who followed him and entered his cell, emerging a few minutes later. The child was dead. The grief of the mother who had lost her son, who was supposedly in the custody of the facility is raw as she suffers the inexplicable loss of her child.
What does justice look like when a child dies in the custody of a government facility?
Time and again we view court-step interviews where those who have been aggrieved through crime, whether it be property damage, injury or death through a road accident explain that the punishment meted out does not satisfy their sense of justice.
The questions are complex and must also consider who determines what justice is in a legal sense, who writes the laws and prescribes the penalties for contravention of those laws.
The 1723 Black Act was passed in England after groups of poachers took part in a series of poaching raids. The act made hunting deer, rabbits or hare a crime that was punishable by death. What the act does not describe is why people were poaching, effectively stealing wildlife from forests, hence stealing from the king’s or other wealthy land owner’s lands, not necessarily because they were sportsmen hunting as in the sport of fox hunts, but because with the enclosures which had rendered so many former peasants destitute, the hunting of wildlife was a matter of survival, staving off starvation.
An examination of the crimes committed by the convicts of the First Fleet which arrived at Botany Bay in January of 1788, we see that there were some serious criminals, the crimes of assault and highway robbery are listed, but most convicts had committed non violent crimes, mainly theft, stealing livestock, clothes, bedding, or even an apple – survival items for people living in poverty, but also luxury items such as watches and handkerchiefs which could be sold to buy the necessities of life. Although a fictional account, the novel “Moll Flanders” by Daniel Defoe, first published in 1722, describes the desperate measures taken for the poor to survive in England at that time.
The laws were to protect those who had the most, to dispose of those who were a bit of an embarrassment really, those who lived rough, who stole, who sold themselves in prostitution.
Laws currently being legislated in the Northern Territory reduce the age of criminal accountability to ten years of age, effectively criminalising the behaviour of children. Similar laws are being proposed for Queensland in the ‘law and order’ election campaign in that state. While the politicians who are enacting or proposing those laws state that they are not discriminating against any particular group of people, any one with eyes to see and ears to hear will understand that there is a distinct racist element inherent in the laws and proposed laws. The incarceration rateof First Nations people is hugely disproportionate in all Australian jurisdictions, as it is for children and teenagers in the juvenile justice system.
Those laws effectively criminalise being Aboriginal.
The ethical dilemma for justice is, in part, who the laws are targeted at and who are protected by the laws, either through ignoring unethical behaviour or who through positions of privilege or power are somehow above the law.
Theft is easy to prosecute when a person steals a trolley full of food from the local supermarket. It is not so easy to prosecute when that supermarket increases prices to increase its profitability so that the shareholders can ‘earn’ a greater dividend for their investment. As recently highlighted, the deceptive advertising of discounted goods and the increased profits published for the major supermarket chains. Is that theft? No, of course not, it is business people doing what business people do, maximising profit for their shareholders, which after all is their primary responsibility. So the behaviour is morally acceptable, satisfying the morality of business, but is it ethical?
Does the justice system criminalise the powerless, but ignore those with the most power, does it criminalise children and poor people and First Nations people but give a pass to those with the most power, the wealthiest, the most privileged?
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14 comments
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Steve Davis
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Arnd
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Steve Davis
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Pete
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Steve Davis
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Pete
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Clakka
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John C
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New England Cocky
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Max Gross
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leefe
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Patricia
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Bert
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Steve Davis
Return to home pageProudhon — “Without equity — there is no justice.”
In line with the ancient definition of justice: “Justum aequale est, injustum inaequale”
(The equitable is just, the inequitable — unjust)
Thanks, Bert, for raising another Big Subject. It’s a subject that I first brushed against at age ten, and that has in the half century since become the single greatest issue to engage my attentions.
To do the subject of justice as I have come to understand it any justice would – will – require the writing of a whole book, and not just a few posts on The AIMN.
Steve: Thanks for that pithy reminder. It’s reassuring that the ancient Romans and Proudhon, roughly 2,000 years apart, came to the exact same conclusion that I arrived at myself. Plus ça change …
Of course, by that reckoning, our contemporary “justice” system stands condemned. But as someone explained to me a few years ago: We don’t have a justice system – we have a legal system!
Indeed Arnd, and the same fate that was suffered by the Roman justice system, a take-over by oligarchs, is what has turned ours into a legal system also.
Years ago I read a book titled Tyranny, from which I recall only one quote, but it’s a beauty.
“The rulers of the world will take from the philosophers only those things that conduce to their own greater power.”
Clear and insightful there Bert, well done.
Society creates criminals and then overlooks the dysfunctional framework of conditions it created that foster crimes. A lot of crimes can be traced back to society having created a 2 tier system based on disposable income, a system that must never be addressed lest the wealthy be required to pay their fair share. At the end of the day that can be put down to greed of the ruling classes supported by voters who elect them. There are other influences other than financial that can turn anyone into a criminal, eg family violence, institutional violence, etc, but for brevity of reply I will leave those aside.
The loss of jury trials seems to have resulted in nations losing their freedoms as the rise of a tyrannical aristocracy, eg political class & BAR members, destroyed fairness in society. Sweden abolished jury trials in 1979 because of a concern about ‘fairness and impartiality’ of jury decisions. At one time, court outcomes were influenced by the life experiences, compassion and empathy of jurors, now? Good lawmen still exist, eg former barrister Julian Gillespie. He is currently getting local councillors up to speed on certain issues, but he is up against the borg (BAR).
Time will tell whether the BAR deserves its privileged position in society, but atm it looks doubtful.
Unless the causes of injustice are first identified and then modified, environments will continue to foster criminal behaviours.
I don’t think Labor or the LNP have an appetite for any significant changes.
Maybe bring back jury trials and see how that goes.
Pete, that’s a good point about jury trials.
Jurors would have a greater instinctive appreciation of the equity aspect that should apply in a particular case, and should really be the basis of all law, while legal professionals, in the main, would have that drummed out of them by the weight of black-letter law.
Steve, true, seems to be the same thing happened in Aust as Sweden. I remember working with people who complained about having to serve jury duty. Haven’t heard much of that sentiment for decades. Thomas Jefferson on the value of jurors: “I consider trial by jury as the only anchor ever yet imagined by man by which a government can held to the principles of its constitution.”
There surely can be no doubt that inequity abounds. It seems that it is embedded, overtly or concealed, in Constitutions across the world. Try as they might, the drafters will be affected by the prevailing ‘morality’ and mechanics of ‘betterment’, and don’t have a ‘crystal ball’. And like the endless stream of legislations, edicts and rules, and amendments, some judiciaries afford themselves tomes of precedents upon which to refer, because prestidigitations, sophistry and obstruction exists and persists – but of course it’s mainly only available to the wealthy and ‘elite’.
As for ordinary folk, for millennia ‘guided’ by religion to assign things, especially writs, as ‘sacred’, so too is the state Constitution consigned, mostly never to be changed unless by consensus of the ‘sages’. A consensus rarer than hen’s teeth. And so, therefore we drag ourselves along through the mud. When it would be better that the Constitutional drafters do not regard themselves as all-seeing supremacists of an infinite status quo. Perhaps embedding a provision for mandatory, say a 20 year complete review and referendum on recommended changes might better involve us all, and better serve equity. It’s surely gotta be better than being strung up by corporations run amok.
There is no equality in our society. Justice is a joke. Clearly our legal system is not fair to those who cannot afford to pay for dodgy greedy slimy barristers and QCs (now KCs). There are those who flaunt the laws because of their wealth and power. These scum use high priced lawyers to come up with every loophole possible for them to escape punishment for their crimes while the poor are left to wallow in self pity rotting away in prison cells because free legal counsel is an even bigger joke than the ‘elite’ practically getting away with murder.
I am reminded that the First Fleet carried a doctor who had been tried & found not guilty of highway robbery, so he was offered the choice go to NSW or swing on the gibbet at the crossroads. He went to NSW and became the richest man in the colony. Who was he?? Darcy Wentworth.
“Israel” is poison that is spreading, with the hot and eager help of the USA, Germany and Italy, it’s principle arms suppliers, as well as the morally bereft bleating of “concern” by US vassal states like Australia.
Steve:
Thanks for saving me the trouble; you’ve started with all I can say on this subject: In an unjust system, there is no justice.
“Does the justice system criminalise the powerless, but ignore those with the most power, does it criminalise children and poor people and First Nations people but give a pass to those with the most power, the wealthiest, the most privileged?” I am assuming that this is a rhetorical question, because most of us know that the cost of legal representation is such that only the wealthy can afford it and those who are marginalised are marched through the legal system (not a justice system) with little to no representation and little to no knowledge of their legal rights and remedies. We have seen recently how justice is administered, Robodebt, a permanent stain on both public servants and politicians of both parties. The fact that not one single person has paid with their freedom or in any other way, for what really amounted to theft on a grand scale from, not the wealthy who could afford it, but the poor, those who depend on the integrity of the people who administer a public service. The fact that a government paid $30 million for a piece of land that was valued at $3 million shows that political theft from the people is rife, businesses being handed multi millions in financial support when they had no need for it and not being required to pay it back, looking at you Harvey Norman especially, shows that if you are wealthy and you rub shoulders with politicians and donate to their coffers you can get away with just about anything, especially if it means being handed taxpayer funds that you don’t deserve. But, if you are poor and you are paid through a mistake by the payer (Centrelink) and you don’t pick it up and pay it back they will hound you to your death, if that is what it takes. A man sits in prison for 5 years and some months, why? because he went public about criminal behaviour in his workplace. Were those who carried out, covered up, the criminal behaviour brought to answer for their crimes, No, but the man who saw wrong and decided to call it for what it was has had his life completely upended and he has been criminalised. This is why political, corporate and military crimes continue, because those who would shine a bright light on injustices and criminal activities are silenced and made out to be the criminals. Does the justice system criminalise the powerless, absolutely. Does the justice system ignore those with the most power, is there any doubt, No. Justice? I don’t think so, not in this country unless you are wealthy and rub shoulders with politicians, judges, those who make and apply the rules, and probably not in any. Justice is just a word, if you are poor, disadvantaged, disabled, a First Nations Person, or even an employee who sees criminal activity in their workplace and seeks to make it known.
Patricia, thanks for the comment.
It is looking like it’s about to get worse with children to do adult time for adult crime in Queensland, ten year olds being considered developed enough to face courts in the NT. It WA a law and order campaign will be mounted by the Libs for the March election despite a high profile candidate reputed to have a cocaine habit, supporting the criminal class, ie drug dealers.
I noticed that in The Netherlands prisons are being closed with a different approach being taken in dealing out punishments. From memory, about 20 prisons have closed, serving now as refugee centres and one as a hotel. The new approach has seen recidivism reduced substantially, due to the issuing of suspended sentences…. keep your nose absolutely spotlessly clean or it’s off to prison you go, types of sentences, oh and community service time as part of the original suspended sentence.
The other thing the tough on crime people refuse to address is the cause of much minor crime and particularly youth crime…. but that is probably a bridge too far for those with the most, and hence with the most to lose.
Exactly Bert, youth crime has a lot to do with inter-generational unemployment — about which state initiatives are limited.