I’ve been out of sorts as of late, too busy to be contributing to this blog. Abstract philosophy, as Geuss notes, is a field for the comfortably idle. I’ve been in the midst of a divorce, and it’s not that I don’t think about the abstract, but my focus is pulled toward the mundane. The US court system comes to mind. I’ve already served on several juries, so I understand how pathetically that side is structured; I’ve been of the claimant/petitioner side and the defence side, and now I am a respondent. I’ve never been an attorney or barrister, nor have I been a judge, but I’ve known some of each, and it’s really a blind faith they have in the system—as well as a paycheque (let’s be honest here)—that keeps them going. As Upton Sinclair once noted, ‘It is difficult to get a man to understand something when his salary depends upon his not understanding it’. Between this and escalating commitment, this poor excuse for a system is going nowhere fast.
“It is difficult to get a man to understand something when his salary depends upon his not understanding it.” — Upton Sinclair
I don’t even believe there is such thing as Justice, let alone some ability to systematise it. As I mentioned in my last post, the system is constructed to prioritise consistency over outcome and favour deontology over consequentialism with just a smidgen of virtue ethics for good measure, but it’s all still just smoke…… and mirrors. It’s theatre—procedure for procedure’s sake. I guess that Foucault may have been right about the Power bit, but there’s more nuance than that.
Meantime, I am trapped in this flawed system trying to navigate between Scylla and Charybdis. If I’m not out by the end of the month, come in to rescue me.
Well, ya. Sure the title has little to do with this post, but I had to sit for a deposition this past week, and like they do on TV, I had to raise my right hand and swear to tell “the whole truth, nothing but the truth, so help you, God.”
Do you swear to tell the whole truth, nothing but the truth, so help you God?
So, as a moral subjectivist, who is also a pragmatist, I thought that it would not be in my best interest to raise the point that I don’t ascribe to their notion of truth, certainly not a God-given truth, and does raising my right hand act like an antenna, perhaps like rabbit ears on the old TVs from the 1960s? And does this ritual work without a bible?
Of course, I understand the notion of this ritual, and so I agreed, but it really drove home to me how the jurisprudence system in the US (and I am sure elsewhere) is just a smoke & mirrors act—some futile deontological exercise.
At some time during the proceedings, an attorney felt obligated to query as to whether I understood what perjury is before reading the statute. I am guessing that this was more of a psychological endeavour meant either to throw off my balance or was in line with the studies where observed students were less apt to cheat on an exam when they had recently signed a statement acknowledging the (fake) anti-cheating clause. Some people are so easily manipulated through indoctrination.
At one point, I was asked if I was taking the process seriously. I acknowledged that I didn’t really, but that he could continue. I am not sure how much was theatrics attempting to throw me off balance, but I think I passed the audition.
Why should justice be the foundation of a society, and why not something else, say, honour or valour or wealth? What do we mean when we say justice? Do you mean the same thing as me? Dating myself to be sure, but would a Klingon from the Star Trek universe share your definition? So what is justice anyway?
‘Justice is the constant and perpetual will to render to every man his due. Jurisprudence is the knowledge of divine and human affairs and knowledge of what is just and what is unjust’, or so writes Justinian in Institutes 1.1 in 533 CE.
“Iustitia est constans et perpetua voluntas ius suum cuique tribuens. Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.”
This is Justinian’s answer to the question: What is justice? In his Philosophy and Real Politics, Geuss relates that ‘justice is the constant and unflagging will to render to each person what is due to him’ (or perhaps ‘what he’s entitled to’), and therein lies the rub: what exactly is one entitled to?
Geuss goes on to point out that entitlement was contingent to one’s place in society. Citizens were entitled to some things, resident aliens another, and slaves, pretty much nothing at all. In fact, giving a slave more than s/he was entitled to would be considered unjust, as it would be considered to be undeserved. As Geuss writes, ‘that to treat a slave as if he or she had any entitlements would be a gross violation of the basic principles of justice’. Of course, you are thinking, post-Enlightenment ‘all men are created equal’, or so the saying goes.
In practice, it’s been easy to sidestep the application of justice by redefining a certain group to be outside of some protected group. During the illegal aggression by the United States against Middle Eastern countries that resulted in extraordinary rendition of civilians spirited off to Guantánamo Bay, Cuba, off the coast of the United States and outside of their jurisdiction, their acting regime declared that the detainees were not people, strictly speaking, and as such were not subject to the protections afforded to people, therefore they had no access to justice.
“Justice is the first virtue of social institutions, as truth is of systems of thought.”
— John Rawls, A Theory of Justice
The ancient Greeks had a different idea of justice, so perhaps we just need to break out our trusty time turner to see what Aristotle had to say about it.
Here Aristotle rather equates the notion of justice to that of equality, but that begs the question: what equality? as we understand that equality comes in a variety of colours, so I won’t belabour the point any further here.
Instead of asking about justice, why don’t we focus on the root of the word, just? This yields the following definition:
Just: (adj) based on or behaving according to what is morally right and fair
This brings us into the normative domain of morality, fairness, and reason, so it’s not much to work with—basically, we are in the realm of opinion defended by rhetoric.
For ‘all’ intents and purposes, we’ve got four forms of justice. We’ve been focused on the distributive type, but there are also procedural, restorative, and retributive varieties. In many cases, not just one form of justice is satisfying and so multiple varieties are deemed, well, just.
Distributive or economic justice is about fairness in how things are distributed, about getting a fair share.
Procedural justice is also about fairness, but it’s more about fair play, an even playing field.
Restorative justice is about compensating for an injustice, about restoring some perceived balance.
Retributive justice is about punishment—retribution.
A problem arises when we try to quantify and measure justice. Consider distributive justice: If two people work in a field and each cultivates 50% of the crop, are each entitled to 50% of the yield? If the cultivated land was the ‘property’ of some other landowner, what portion would s/he be entitled to? All of it? Some of it? None of it?
What about the court system? Procedural justice comes into play here. Should a wealthy person have access to better attorneys than a poor person? Is this just? The poor person may argue no, but the wealthy person may argue that s/he earned the ability to pay for a better lawyer, so s/he is entitled to this benefit.
Restorative justice sounds simple at the surface. If I steal a loaf of bread, wouldn’t returning the loaf (or, at least, a similar loaf) be restorative—no harm, no foul? Many people will argue that this is not good enough. Balance has not been restored.
This is where retributive justice comes into play. Retributive justice is a poorly veiled euphemism for vengeance. This is where Hammurabi‘s code (or Leviticus‘) eye for an eye—but not Matthew‘s turn the other cheek rendition—comes in. Let’s not get into Nietzsche’s take on forgiveness as being unjust and part of slave morality.
Keep in mind that in Hammurabi’s code, as with Roman law, justice was relative: Given eyes, (Nº 196) ‘If a man put out the eye of a nobleman (amelu), his eye shall be put out’, yet (Nº 198) ‘If he puts out the eye of a freedman or breaks the bone of a freedman, he shall pay one gold mina’.
Through all of this, we are still left wondering: just what is justice besides some vague notion constructed solely to preserve the status quo.
Episode 8 of The Moral Foundations of Politics with Ian Shapiro was another difficult lesson to watch—rather to listen to—the student responses. Evident is the degree of indoctrination or brainwashing these students have been through. I want to document some pieces I feel are relevant to my position.
The fact that morality is perniciously imposed and infused on the unsuspecting
The fact that property rights change over time
The fact that legal interpretation changes over time
The responses were primarily knee-jerk responses anchored on institutional indoctrination. Whilst it makes sense to indoctrinate a group, I am opposed to imposing an obvious relative morality but passing it off as absolute.
Asking how prostitution could be illegal when sex and commerce are both legal, the responses—to be fair, only a couple people responded—were about how it might somehow ‘harms’ women or society as a sort of negative externality, be violent, have been coercive or a form of slavery, have involved a married or otherwise committed spouse, or have involved an under-aged person. These were poor man’s strawman arguments at best, each potentially with merit, but each a separate issue from the question.
In fact, we can likely find evidence of each of these in a ‘typical’ employment situation: coercion, under-age, a threat of violence, implied or expressed; the spousal issue doesn’t fit these situations, but even if we want to legislate keeping people safe from their own actions, it is as illegal for unmarried persons, so the rationale is insufficient.
The point I hold is that prostitution in and of itself is no more exploitative than any other source of employment, a source income. Given that Western society imposes income as the primary means to support one’s self, the wrong here is that artificial barrier. Were income not a veritable necessity, prostitution to earn money (or use as a barter) would also be unnecessary. This is not to say that the other aforementioned objections would be resolved; this because, as I mentioned, they are different issues.
Next, we are told that marital rape originally not considered a crime because a woman was considered to be chattel property transferred patriarchally from her father to her husband. As I’ve written previously, I do not subscribe to the notion of property in the first place, but taken that as given, it is obvious that property is determined through whimsy. Property rights change over time, whether receding as just noted or expanding to include intellectual property and the expanse of patentable ideas. It’s disconcerting that application of the law can be so arbitrary and, though perhaps not capricious, frivolous. And given it is all open to interpretation, the pendulum can swing in the other direction, as the women of Iran and other fundamentalist theocracies has experienced.
Apparently, I’m done ranting. Basic income has been mentioned as a solution to some prostitution, as some women participate out of desperation. Though I feel that this might kerb some prostitution, some women would still seek to supplement this base income, if only to advance their personal standard of living.