Justice and Morality

Quoting the James Legge translation of Confucius, “The Master said, "The superior man does not promote a man simply on account of his words, nor does he put aside good words because of the man."

Tsze-kung asked, saying, "Is there one word which may serve as a rule of practice for all one's life?"

The Master said, "Is not RECIPROCITY such a word? What you do not want done to yourself, do not do to others."“

From another dialogue in the same source.

“Some one said, "What do you say concerning the principle that injury should be recompensed with kindness?"

The Master said, "With what then will you recompense kindness? Recompense injury with justice, and recompense kindness with kindness."“

The word justice is like many words in our language. It has such emotional force, justice being good and injustice being evil that every side attempts to prove its claims just and the other sides claims unjust. This being so, it has come to have so many meanings that it is virtually meaningless.

One of the greatest problems with Justice is its confusion with Morality. It seems to most people that what is Moral must be Just and what is Just must be Moral. If this were so, it would seem that there would not be two words but only one. If Justice is the same as Morality, why are there two words instead of one?

The idea of a deterministic universe highlights this cloudy reasoning. A certain school of philosophers tends to maintain that if everything you do is determined by causality, then you have no free will. If you have no free will, then you have no moral responsibility for your actions. If you have no moral responsibility for your actions, it would be immoral (unjust) to punish you for your actions.

Hobbes dismisses this idea in Leviathan thusly,

The flaw in this concern over some absolute free will is that it assumes that the person judging and punishing can be morally responsible for that action in a universe in which no moral responsibility can exist. How can it be morally wrong to punish someone when no moral responsibility can exist? It demonstrates the God complex which afflicts most metaphysicians and many philosophers. They confuse themselves with God, dictate to God how He should have designed and created the universe and other similar things. In this instance, confusing themselves with God they worry about the morality of their actions after demonstrating by their premises that moral responsibility cannot exist. It is a philosophical conflict created by the extreme vanity of philosophers.

Like an equation where the same terms on either side of the equal sign can be canceled to simplify it, in a deterministic universe absolute moral questions on one side cancel out absolute moral questions on the other. All you are left with is the human questions. Questions based upon human needs, human feelings, and human assumptions. Free will exists in a human sense as we all make choices in our lives. Anyone who has ever suffered from indecision knows fundamentally that he possesses free will in a real human sense. Moral responsibility exists in a human sense as we all make moral choices in our lives. Justice exists in a human sense because we all have feelings about what is just and unjust. These words morality, justice, free will, were all invented by humans to describe things which are completely real at the human level of activity and understanding of the universe.

They may not be real to God, but they are real to men. A book like this one which is concerned with practical issues of political philosophy is concerned with these words in the realm in which they actually mean something that is real to real human beings. To deny their existence is like denying that forests exist because they are really just bunches of trees or claiming that chairs do not exist because they are really just accumulations of atoms. To deny things that really exist and that human language has created names for is to deny the words any relationship to the things that they were coined to discuss. This kind of thing makes words meaningless by taking them out of the context in which they actually possess meaning.

The question of what is Justice in a book like this concerned with Natural Law as determined by Human Nature must look not at current politically correct definitions of Justice but at what the word means consistently in history.

There is a sense of Justice hard-wired into human nature and it is best summed up by the word Reciprocity. If you do good to another you expect to receive good in return. If you injure another you expect them to injure you in return. If they cannot injure you in return it is considered a mark of their inferiority and weakness. It places them lower on the pecking order.

Pecking order behavior is frequently confused with Justice. Justice is tied to expectations. If a person expects to be able to abuse another person with impunity, he feels injured if that person retaliates. Lese Majestie is the classic name for crimes of this type. Institutionalized Pecking Order behavior is present in almost all early codes of law. This emotional understanding of status behaviors means that all humans feel injured in their status if another person assumes an authority to accept good from them without recompense or a right to injure them without retaliation. Similarly when charity is given, it includes an assumption of superiority to the recipient. Un-equals expect to give and receive inequitably. Equals feel a need to balance accounts. In a society where all are supposed to be equal before the law it is important to avoid legally institutionalizing pecking order or status crimes.

As in the discussion of corporal punishment and gun ownership, this mechanism defines equality and inequality. This natural definition of justice includes retribution and punishment as inherent in the idea of justice. Debts must be paid. If a person injures another Citizen that debt must be paid by appropriate punishment.

The contrary definition of Justice is quite idealistic. It sees retributive justice as primitive, a kind of vengeance and vengeance is as consistently bad as Justice is good. Ergo, Justice being good cannot really contain an element of vengeance, can it? The problem with this is that Justice does contain an element of retribution of vengeance. To quote the Bible,

Exodus 21:24 -“eye for eye, tooth for tooth, hand for hand, foot for foot,”.

It is true that in Mathew this commandment is cited as insufficient for real moral virtue,

There is a confusion between the morality of Saints and the standards of Justice. It is assumed that the moral standard which marks a Saint is also that which should be embraced by the State in administering Justice. If Saints were only Just, where is the virtue in that. It is because their virtue and love goes beyond Justice that they are Saints. To quote Matthew again,

This kind of morality is the province of the Church not of the State. It is concerned with personal salvation not justice. To confuse this with Justice which is the province of the State is to violate the separation of Church and State.

It is a traditional principle of practical political philosophy that if all people were true philosophers there would be no need of Law or the State. If every person alive were the moral equivalent of Mahatma Gandhi, Jesus, or Buddha, there would be no need of laws and law enforcement. Politics, Government, Law and Justice exist because the world is not entirely peopled by Saints. This has been pointed out by the more practical political philosophers so consistently that it has become a commonplace of political philosophy.

To confuse a moral standard of behavior designed for Saints confidently awaiting the end of the world in a few years with the standard of Justice which must be enforced by the State in the real world is simply not realistic. It arises from a confusion of Morality with Justice.

There is nothing more dangerous than confusing Morality with Justice. Draco of Athens was an extremely moral man. His body of Laws gave the word Draconic to our modern tongue. It is described in Plutarch’s Life of Solon as follows,

This is a very moral judgment. It attaches moral condemnation to all crimes, which being immoral and evil deserve death as their punishment. After all, immoral behavior is an offense against the Gods, a form of sacrilege, what punishment could be sufficient for that? There are fundamentalist Christians today who think in the same way.

Hobbes rebuts this point of view also held by the Stoics in a passage from “Leviathan”,

Jesus the Merciful echoes the Stoic idea when he says,

The feeling about offenses in both moral extremes is essentially the same. All crimes are equally bad. They all deserve either equally absolute forgiveness or absolute and merciless punishment. This is religious reasoning. All crimes are immoral acts or sins, thus acts of sacrilege against God or the Gods, as such no punishment can be sufficient. They must all either suffer the greatest possible punishment or all be equally forgiven. It belongs to the Church not to the State. Justice is the province of the State.

Punishing on this moral basis is not a just judgment as the punishment is not proportionally adjusted to the crime in a human sense. In administering Justice it is necessary to remember that we are not God, nor are we his appointed representative. Human Justice is the province of the State. God, if He exists can deal out Divine Justice in the hereafter.

It was also argued by those who opposed Draco’s laws that they encouraged murder. A thief who stole a cabbage would be more likely to kill witnesses under Draco’s laws. He would not fear a worse penalty for murder as death was the penalty for stealing cabbages. This is a fundamental practical reason why Justice must be equitable and the penalty adjusted to the crime. If you make a lesser crime punishable with a penalty that should be reserved for greater crimes, you encourage those guilty of the lesser crime to commit the greater crime to avoid retribution. If you make a greater crime punishable by the same punishment as a lesser crime you encourage those guilty of the lesser crime to commit the greater to avoid the punishment as the greater crime carries no greater punishment.

Similarly, excessive mercy and clemency are unjust because they do not fit the punishment to the crime. Draco was too severely moral and Jesus too mercifully moral to fulfill the needs of Justice. Morality and Justice are not the same things at all times. Justice ensures equitable returns for actions between Citizens. This is the Natural Law that must be preserved by the Social Contract. Morality is a personal choice about right and wrong frequently tied to beliefs about some divine order of things. Both of these extreme moral positions violate the fundamental principle which underlies Adam Smith’s invisible hand and such natural rights as due process, property, liberty, etc. They separate action from result. Being too merciful means that bad actions do not bring bad results. Being too punitive means that results are not matched to actions. Both are violations of the fundamentals of Human Nature and the Natural Law that results therefrom.

Justice is a question of settling disputes equitably in this world. Where injury is done, an equitable punishment must be administered. Justice is always moral in a sense, but because it is driven first by Reciprocity and only secondarily by Morality, it avoids the extremes of Moral thought which change what is called Justice into something quite different. Justice is always moral in a sense, but morality is not always Just.

There is much to be said in favor of mercy and clemency. Hobbes in “Leviathan” says,

Plutarch in his Life of Caesar mentions the remarkable reputation for clemency which Caesar had,

Caesar’s clemency, like all noble actions, could be attributed to a selfish motive. As Hobbes maintains the need for pardon when appropriate out of concern for the future. In the quote above Caesar’s clemency to his defeated enemies convinced them to surrender to him more easily and quieted apprehension in Rome. The expectation that one will receive clemency, or a light sentence may reduce the violence of resistance to the agents of the law. Receiving a light sentence when a heavy sentence is justified by the crime may provoke a sense of gratitude and encourage reform on the part of a violator.

It does not always work that way. Caesar was slain by Brutus and others to whom he had shown the utmost clemency. Domitius in the example above betrays Caesar and takes up the cause of Pompey. It has been said that nothing is more unforgivable in an enemy than generosity and mercy. Caesar is an excellent example of the role of clemency and mercy in human affairs, when it works and when it fails. Caesar conquered the Gauls and generally showed the same level of Clemency and Mercy which he showed to his fellow Romans. After ten years of rebellion, the Gauls became loyal subjects of Rome, and did not revolt against Rome when it was torn apart by Civil Wars between the First and Second Triumvirates. The Gauls accepted being conquered by Rome and were grateful for clemency and reconciled to the benefits of Roman Civilization. Rome at that time was conquering the world. The Gauls were in good company and not degraded by the conquest. Instead of being conquered and pillaged by other Gauls or German barbarians, they enjoyed the military protection of a power that was conquering the world. They were equal with the rest of the known world. The Romans Patricians did not accept being conquered by a fellow Roman, a Patrician of their own class assuming Royal dignity above them. Each felt himself the equal of Caesar and felt degraded by the glory of Caesar.

This again ties into pecking order psychology. An equal is not grateful for clemency from a conqueror they consider an equal. Clemency and Mercy only instill gratitude when the recipient accepts the justice of the punishment which he deserves and realizes that the reduction of that punishment is an act of mercy not a right.

When Clemency and Mercy are the policy of the State and confused with Justice in the minds of the Citizens, a criminal expects them as Rights and feels unjustly treated unless he receives them. He has no gratitude for receiving them and any use they might have in reforming him through his gratitude for receiving Clemency or Mercy is destroyed. Clemency and Mercy cannot spur reformation if they are confused with Rights and Justice. Only in a Society where Justice is based on equity can the relaxation of that standard have a reforming effect in those cases where it can be justified in that hope. Excessive mercy in the law is just as unjust and unwise as excessive harshness in the law.

It is not only criminals who are involved in the criminal justice system. The victims of crime are also involved. Pecking order behavior enters into this aspect of the Justice system as well. A person who can injure another without being punished for it demonstrates a higher social status than the person whom he injured. To remove retribution as an element of criminal justice is to systematically treat law abiding Citizens as lower in status than the criminals who injured them.

The fundamental mechanism of human nature from which most natural rights derive is the necessary connection between action and result. To treat criminals as higher status than law abiding Citizens is a gross violation of this principal. To treat law abiding Citizens as lower in status than criminals is a gross violation of this principal. The idea that Citizens do not have a right to see those who criminally injure them punished for such actions is the systematic emotional abuse of the Citizens. It is a violation of Natural Law. A violation of the same Natural law that supports Adam Smiths invisible hand. It adds insult to the injury that the Citizen has suffered. Violation of this Natural Law has resulted in Victims Rights movements in the US recently. A society which indulges in the systematic emotional abuse of its law abiding Citizens is heading for trouble. The State or Social Contract is a tool or instrument created by the Citizens for the improvement of their lives. It has no rights of its own but merely acts on behalf of the Citizens. In prosecuting criminals and punishing them it is acting as the agent of the injured citizen to balance accounts. It acts on behalf of other Citizens by punishing criminals to discourage criminal behavior. It acts on behalf of all Citizens by being an impartial agent of punishment thus preventing the cycle of violence, revenge, and increased violence. It has no rights and thus has no right to punish anyone, it has duties and has a duty to execute Justice which includes the measured punishment of injuries done to its Citizens. By providing an unbiased authority which administers equitable punishment proportional to the offense it removes the need for personal retribution of injury and helps maintain a state of peace. When it fails to do this it recreates the need for personal retribution and attacks the foundations of the Social Contract.

The lack of an element of retribution in Justice is also abusive of the rights of the criminal. Human Nature demands a balancing of accounts. A criminal who pays his debt to society has balanced accounts. This gives him a right to start over with a clean slate. A criminal who has not paid his debt to society has not balanced his accounts. The ‘merciful’ element of society who desire to treat all criminal behavior as some form of mental illness are the most merciless and unjust to the criminal. The assumption that anyone who commits a crime is mentally ill and must be treated includes an assumption that there is something chronically wrong with him. He can never pay his debt to society and start over. He must always be watched to ensure that he does not have a relapse. This attitude has grown in society, and the idea that debts are paid has lost ground as our criminal justice system has been seen less as a system of retribution and more as a system of reformation or treatment.

Retribution allows both the victim and the criminal a sense of closure. It imposes on society a moral obligation, within reason, to allow the criminal to start over with a clean slate. Removing retribution from Justice denies the criminal his right to balance accounts as well as the victim his right to see them balanced.

The state has a vested interest in the reformation of criminals. Unless a criminal sees his action as wrong and punished for being wrong, how can he be expected to reform. Retribution is an element of reformation. The state should emphasize reformation and make real attempts to reform criminals. This cannot be allowed to remove or cancel retribution from the definition of Justice.

Justice is not the same as Morality. Justice is a balancing of accounts between two parties with the State acting as the agent of the injured party and his fellow citizens. To quote Hobbes “Leviathan”,

Justice, not morality, provides a rational basis for judgment of violations of the law. It allows you to balance the crime with the punishment.

To apply the Aristotelian rule here, “Virtue, then, is a state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it. Now it is a mean between two vices, that which depends on excess and that which depends on defect; and again it is a mean because the vices respectively fall short of or exceed what is right in both passions and actions, while virtue both finds and chooses that which is intermediate. Hence in respect of its substance and the definition which states its essence virtue is a mean, with regard to what is best and right an extreme.”

The rational principle involved here is the need for a strong relationship between action and result. The moral extremes are to not punish a crime proportionally to its seriousness or to punish all crimes as severely as possible. Justice is a middle ground which apportions punishment proportionally to the crime and provides a rational rather than an emotional moral basis for punishment.

As Confucius said, "With what then will you recompense kindness? Recompense injury with justice, and recompense kindness with kindness.". Confucius was a political philosopher. His teachings are largely concerned with preparing his students to be the officers of State in China. They are more practical than Draco’s moral severity or Christ’s merciful morality. They define Justice as it must be administered by the state better than either of those extremely moral men Draco or Jesus.

As a final note, error is natural in all human systems. A Justice System which errs on the side of harshness rather than mercy will lose the trust of its Citizens more rapidly and radically than one which errs on the side of mercy. When in doubt it is best to err on the side of mercy. Hence the doctrine of reasonable doubt in our Justice System.