“Justice” as a movie theme has always been a big deal. The plot of nearly every western goes something like this; a great injustice happens in some small town where people are either unsympathetic toward bringing justice or they are held captive by fear of the town bully, soon the hero comes along and after a satisfyingly difficult ordeal, eventually delivers justice. The theme is not restricted to westerns of course, just look at most Clint Eastwood movies, most action hero movies, Rambo etc. etc. The thing about movie justice is; there is almost always a certitude about who the “bad” guys are and who the “good” guys are. In the real world there is no such certitude, determining the right course of justice is a difficult process.
In the essay “Racism” I used the words “revenge” and “teaching” in much the same way as I use “justice” in this essay. Justice has a more righteous ring to it, but that deep-seated feeling we all get when we see injustice close to us takes on different forms and goes by many names. When seeking justice we tell ourselves things like; “you need to learn a lesson” or “you can’t get away with this”or “some day I’ll show you” or “I deserve it”. One could almost say it was the driving force behind all our fulfillment quests. The thing which moves all our stories along. The poor man seeks a fortune, the two souls destined to become lovers, the journey into despair an then the redemption, the overcoming of great odds, I could go on and on with the various story themes we create for ourselves but behind so many of them is this thing we sometimes call “justice”.
The natural world seems to care little for our sense of justice. How often are “good” people stricken down by disease, the random drunken driver, natural disaster or some other calamity. Our quest for justice is a deep-seated one, based I’m guessing on the strong sense of empathy we feel towards ourselves and those close to us (our family and loved ones) and even those not so close to us (our community). This trait may not be completely unique to our species but it appears that we have the greatest sense of justice and empathy of all the species on earth. In fact it is one of the main defining traits that we consider human. We use the term “treats people like animals” when describing someone who treats others callously without empathy or justice.
Unlike the movie version of justice, the real life version of justice is never so clear-cut. In my experience “justice” seems to be aligned with a social contract and those who live up to the social contract are deserving of “justice” and those who don’t, deserve punishment. “Justice” is not only the process we choose to differentiate the “good” from the “bad” but also the remedy we apply. There also seems to be a certain amount of egalitarian spirit attached to justice; the feeling that those on the lower end of the social order can be just as “good” as anyone and those on the higher end can be just as “bad” as anyone. Ideally we believe that justice should be based on factors that go to the core of the individual, not any preconceived notion about what group that individual belongs to. So “justice” is not a simple thing to arrive at, as it often means challenging the powerful or the routine way of doing things. That is where rebellion comes from; when a certain group feels unjustly treated and makes a concerted effort to work toward justice; the civil rights movement, the gay rights movement, the women’s rights movement, the indigenous peoples movements are one of many examples. They are all movements working toward a more malleable concept of justice. They the old concepts became too rigid and unfair in most peoples eyes.
This struggle to look for “justice” is similar in my mind to the scientific quest for “truth”. In the natural world, we could say that when science is seeks the truth about natural phenomenon that is the rough equivalent of seeking justice in the social realm. In the quantitative realm we could say that mathematics seeks the “truth” about quantities. Both science and math seek to make the unknown become known, and this is roughly the first step what justice tries to achieve. However, science and math have greatly increased our understanding of the world around us and made our lives generally more comfortable and prosperous while justice tends to get bogged down in arcane traditions- often favoring status over truth. It tends to approach unknowns with a degree of certitude (prejudice) that science has learned is counterproductive.
Justice uses a set of rules defined socially. It is much more difficult for us to not bring our own prejudging minds along as “justice” is being sought. With prejudice our seeking of justice is not so much a seeking of truth, as a battle of political status. The word “truth” may be bandied about but it is not the same kind of “truth” that exists in math and science. Where math and science help us know that when 2x=10 then x=5 or that water achieves its gaseous state at sea level when it reaches the temperature of 100 C. Instead justice would have to stop and consider how persuasive was the lawyer arguing for the 100 C number or if there wasn’t reasonable doubt that x=5. We would have to worry whether or not the judge liked the 5 outcome or whether the jury had been scolded with hot water.
Certitude and justice are not a good combination. Justice is a process not an opinion or a belief. Where we can now say the boiling point of water is 100 C with certitude, such was not always the case. There was a time this was very much in doubt and a process was applied to solve for the unknown boiling point (in the case of Centigrade the boiling point was determined first and the 100C became the description of the temperature). That process did not include a judge who secretly despised water and preferred the boiling pt to be 75C. It did not include two lawyers who cared little for the truth but simply wanted to “win”. It did not include a jury who was unversed in the details of how measurements should be analyzed, so had to rely on “experts” paid to help their side “win”. Such a process would be considered ridiculous in math and science, so why do we still hold firm to a process which echoes back to medieval times when applied to justice?
I venture to guess that it is because we still cling to tribalism that we employ a political process when trying to determine “justice”. We must be assured that the dominant tribe will prevail. When seeking “justice” we often claim to be seeking truth but we are generally afraid to apply the same rigorous methods as math and science do. Those who are set to the task of collecting data for justice always have a stake in the outcome, where science does everything it can to prevent such a situation. The stories and beliefs of the dominant tribe would be endangered if methods without predetermined certitude were being applied. We prefer to hold on to our adopted stories and beliefs and simply call our process “objective” instead. One example of this tendency of which I am guilty, as are most Americans; is our tendency to feel we have more privilege and more right to more comfort and wealth than the rest of the world. If an American is treated with injustice aboard it becomes a very big deal, while if some other nationality is treated with injustice in the US or aboard it is hardly even news.
Certitude, loyalty, patriotism are not useful methods for seeking justice. They can be dangerous pitfalls, traits favored by callous dictators, common killers and those who would impose their own set of beliefs on others. I’ll use the recently deceased Judge Scalia as an example of a judge who uses a high degree of certitude, loyalty and patriotism when making judgments which determine the rules which our society adopts. He confidently claimed he possessed a unique knowledge of what the original framers of the constitution thought and what their intentions were when writing the document. His “originalism” seemed surprising similar to the “fundamentalist” re-interpretation of religions that were in fashion during the seventies and eighties. There was a looking back in time toward a more “special” time, a time when “truth” was more evident and spoke more clearly. This happened (and continues to happen) in Christianity, in Islam, and it happened in the supposedly more “pure” strain of “get the government of our backs” form of American politics. Reagan spun a misty-eyed story about how great America was some idealized time in the past (maybe this time was from one of his movies) and how we can go back there again and recreate it. There is often a sacredness bestowed on distant beliefs especially when the messy vagueness of their origins are lost to the present, and this is the allure of fundamentalism. Of course there is nothing like the certitude of familiarity. So it is easy to understand why someone like Scalia might want to recreate an imagined sacredness surrounding the origins of the US Constitution, imbuing its authors with imagined religiosity; (the kind of religiosity which he happens to believe in) when the document itself contains no such religiosity.
This is of course what makes people with such certitude so dangerous when they hold powerful positions, their ability to quash all other viewpoints which bring up other evidence. This is not to say that Judge Scalia was not clever. He was talented at putting words together that heaped scorn on those with whom he disagreed and helped to make his own opinion appear stronger, because it had been burnished with the sheen of cleverness. But it does not mean his opinion can stand up to the real world test, the ultimate arbitrator of reality. So many of the things he scoffed at as a judge and considered implausible at the time turned out to be in fact very likely. The idea that large campaign donors could easily hide their identity- Citizens United- was only one of many concepts that Scalia was blind to. This real world blindness is something that science does not have the luxury to coddle. Scientific theories as far off as Scalia’s assumptions are quickly challenged by other peers. Here are a few of Scalia’s thoughts with the underpinning assumptions striped bare.
Opinion on a 1993 ruling Herrera v. Collins: “With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.”
Underlying assumption: The appropriate government executive will always use his/her power of pardon when evidence of the wrongly convicted is strong.
Dissent in 2002 DARYL RENARD ATKINS, PETITIONER v. VIRGINIA: “The Court makes no pretense that execution of the mildly mentally retarded would have been considered “cruel and unusual” in 1791. Only the severely or profoundly mentally retarded, commonly known as “idiots,” enjoyed any special status under the law at that time.”
Underlying assumption: Only social values from 1791 can be applied today. The framers of the constitution did not allow for changing social mores.
Dissent in Edwards v Aguillard on June 19, 1987 Scalia suggested the court has no way of knowing whether creation science “is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment” or whether it is “not science at all but thinly veiled religious doctrine.”
Underlying assumption: An overwhelming volume of scientifically, peer-reviewed and painstakingly researched data over decades (true in 1987 and even more true today) all pointing to “evolution” and away from biblical derived “creationism” is only equal in value to a few papers written in a quasi-scientific manner by those with a clearly prejudicial viewpoint.
Oral arguments in Fisher v. UT-Austin (Fisher II) Here Scalia repeats someone else’s supposition but appears very amenable towards it: “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a slower-track school where they do well.”
Underlying assumption: People can be sorted into monolithic groups and certain assumptions can be made about those groups. In this case: African-Americans do not perform well in more advanced universities and it would benefit African-Americans to attend “slower-track” schools.
Concurrence in the 5-4 Citizens United decision, Kennedy claims, “the absence of prearrangement and coordination undermines the value of the expenditure to the candidate [and] … alleviates the danger that expenditures will be given as a quid pro quo for improper commitments.”
Scalia adds; “Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”
There are two underlying assumptions here.
The first rather naïve assumption is Kennedy’s: Those who fund politic campaigns will not coordinate directly with the candidates they are funding.
The second more brash assumption is Scalia’s: “Money” is equivalent to “speech” as described in the First Amendment.
In Scalia’s opinions he does not use words or phrases that seek greater insight or find parallels with those he disagrees with, it is clear his mind has been made up. He falls back on his status; because he says it, then it is so. Much like an umpire who calls balls and strikes; to paraphrase Judge Roberts. The umpire does not expect to be questioned on each and every call and his/her position as a quick and final arbitrator is needed to move the game along quickly. However the Supreme Court differs greatly from a baseball game. In a baseball game the rules are clearly defined and everyone playing agrees to buy into them for at least the length of the game. Supreme Court judges whether they admit it do not have a clearly defined strike zone, much is left up to interpretation. And their decisions have the potential to effect everyone in their jurisdiction every moment of their lives.
A sense of justice is very dear to us. It is a cornerstone of social interaction, it should never be treated as lightly as an umpire calling balls and strikes. Justice is dear to us because it is a very human social invention. Nature is not intent on “righting” its “wrongs” or even trying to define what a “wrong” is. Yes, Nature has a very long a slow process of finding a kind of equilibrium but this is not the same thing as justice. Science and Math have an advantage when it comes to testing assumptions, it is the greater world outside ourselves that we can observe and measure. The underlying assumptions upon which a justice like Scalia bases his opinions are generally hidden behind layers of archaic legalese, and clever use of phrasings.
“Justice” is something we humans invent as we go along. I would claim that those who we assign to define what the current shape of justice takes should be open and clear about why they arrive at certain decisions. The underlying assumptions should be presented and discussed by the community at large. Are they assumptions that the larger community agrees with? Does the larger society want to base their justice on this particular set of assumptions? We can not always test these assumptions as we can with science and math but at least we should state them clearly and openly before using them to define what kind of “justice” we will have for future generations.
Of course this last statement is based on my own assumption of social egalitarianism and democracy. I am assuming that that all members of the community at-large should have a part in what becomes defined as “justice”. And that all members want to have a part in defining “justice”. Maybe this is not what our larger national communities wants. Maybe they prefer something like what the conservatives on the Supreme Court give us; a much more hierarchal vision of justice. A vision of justice where money and status are highly valued. A justice where the social mores of past centuries are given a greater value than today’s social mores. A justice based on the sacralization of the text of the constitution rather than a respect for its spirit. And a justice based on the sacralization of the text of the bible.
Another principal role of “justice” throughout history has been to protect the weak from the powerful. When the weak feel treated unjustly they will often struggle to gain greater justice. Sometimes this struggle becomes violent, sometimes not, but often there is a realignment to help end the struggle. A new social contract is written to allow for more justice for the weak. The American Revolution and the Constitution are examples of the recurring struggle. It is on ongoing process that has happened throughout history. The powerful have the advantage of creating their own justice but the weak need a clear set of rules to help protect them. Our Supreme Court has not been a consistent defender of the weak against the powerful, in fact more often than not it creates rules which bring more power to the powerful. Scalia is a good example of a justice who operates in this manner. And he has plenty of company among Supreme Court judges throughout history.
Let’s examine the assumptions that I have used as examples from Scalia’s opinions. Can they be tested or do they ring true with our larger national community?:
Assumption#1: The appropriate government executive will always use his/her power of pardon when evidence of the wrongly convicted is strong.
This one can be tested and it is in fact wrong. After DNA testing has become practical, it has proven hundreds of convicted felons innocent of the charges against them. The appropriate government executive has rarely pardoned these wrongly convicted even after their release.
Assumption#2: Only social values from 1791 can be applied today. The framers of the constitution did not allow for changing social values.
I doubt this one could be tested. One could take a survey and try to find the prevailing opinion but is the prevailing opinion the “correct” opinion? If Scalia doesn’t consider public hangings, floggings or slavery to be cruel or unusual, as these kinds of punishments were common in 1791, then he is simply an umpire calling strikes and balls as he sees them.
Assumption#3 An overwhelming volume of scientifically, peer-reviewed and painstakingly researched data over decades all pointing to “evolution” and away from biblical derived “creationism” is only equal in value to a few papers written in a quasi-scientific manner by those how just happen to have a literal biblical viewpoint.
This one can and has been tested. In fact Scalia is clearly hanging on to his personal view of the natural world based on his religious teachings. Why doesn’t he come out and say he is basing this opinion on his own religious beliefs? Because “Congress shall make no law respecting an establishment of religion…” is front and center in the First Amendment. This opinion is not just a bad one, it goes against the very spirit of the Constitution itself. He gets away with it only because his religious beliefs are in line with most of his supporters. He would never be so open to Muslim or Hindi literalism.
Assumption#4 People can be sorted into monolithic groups and certain assumptions can be made about those groups. In this case: African-Americans do not perform well in more advanced universities and it would benefit African-Americans to attend “slower-track” schools.
This one stems from people’s natural tendency to think “tribally”. Scalia is using a negative stereotype about a group of people that he clearly doesn’t feel like he belongs to and probably feels superior towards. The spirit of the Constitution has been interpreted by many to offer protection to minorities from the persecutions of the majority. The US being populated by many small religions who were persecuted in their country of origin, had good reason to attempt to add protections to minorities. One of the valuable roles of government has been to help break up these tendencies toward tribalism while still being sensitive to the traditions of minorities; a very difficult task. But allowing universities to create a protocol for admitting people they see as qualified but also belonging to groups with low enrollment, would help achieve this goal of breaking up these tendencies toward tribalism. Scalia seems to think this is not an important role of justice.
Assumption#5a Those who fund political campaigns will not coordinate directly with the candidates they are funding.
This one has very clearly been shown to be be way off target. In practice “non-profit” PAC’s need to be created that are separate from the candidates own campaign but there is no longer much doubt that they are coordinating with each other and that the candidate is aware of who is providing him/her with their campaign funding. In essence these big campaign funders are now hiring these candidates to represent them, when the candidates are supposed to be representing their district’s constituents.
Assumption#5b Money is equivalent to “speech” as described in the First Amendment.
Again this would be a tough one to test. But I would tend to define speech as a two party interaction. The listener should consciously choose to listen and interact with “speech”, rather than have it forced upon the passive listener through commercials or surreptitiously through “news”. “Speech” is an honest expression without an ulterior profit incentive, the other is propaganda. Money buys a lot of propaganda but “speech” requires very little money. The Citizens United decision has given protected status to propaganda and this actually hinders free speech by drowning out unfunded viewpoints, and obscuring the motive behind the speech. It also narrows the range of dialogue to only those who are willing to spend the most money. The forum for public discourse becomes too crowded with dialogue and only those who can shout the loudest (usually by using money) can be heard. Free speech is an essential part of the national dialogue and the original framers of the Constitution recognized this. But if only the highest bidders can take part in the dialogue then we no longer have free speech. “Free” has a dual meaning in this case, meaning unhindered and available to even the poorest citizens.
Justice is the social contract that we are all a part of by either being born into it or accepting it by becoming a citizen. If one follows the social contract laid out before him/her according to their status, one will be treated with fairness; that is the promise. But the social contract is not always clearly written for everyone to understand and it changes over time. In our country there is a different kind of justice for poor people than the justice offered to the wealthy. Nowhere is this clearly stated in the US constitution or any state constitution that I am aware of, this is simply a fact of legal practice. People who are not part of the dominant tribe also face a different kind of justice then that offered to members of the dominant tribe (the weak vs the powerful). It is a reality that we pretend does not exist when talking in grand esoteric theory as Supreme Court Justices often do.
This kind of two tiered justice is common on the street level for three of different reasons, as far as I can tell. One is the profit motive behind “justice”. Police departments and cities need to pay their bills and the “taxpayers” demand that they balance their budgets; fines, tickets, court fees, late fees etc are all very profitable for these institutions. Do our courts ever consider that a fine that amounts to a tiny percent of one person’s income is in fact a major life changing burden to someone else? The second reason for this two tiered justice is plain and simple “racism” (in a previous piece I tried to show that what we call “racism” is actually a more narrow form of what I’ve called “tribalism”). The members of the police and criminal justice system are almost invariably members of the dominant tribe, in fact being in such a position almost defines them that way. The members of the dominant tribe can show respect and fairness to those they don’t feel connected with, and for the most part they probably do. But it is very common for the poor and people of color to be treated unfairly simply because of who they are. The third reason for this uneven justice is just practical efficiency. Our criminal justice system is archaic and cumbersome, and there are livelihoods and professions (lawyers, judges, the prison industry, the criminal justice industry) invested in keeping it that way. As such, certain assumptions are made about people if they can be fit into a particular category, these assumptions (usually negative for the poor and people of color) help make a cumbersome system move along a bit faster.
There are those who like to think our concept of “justice”, that social contract that each nation shares with all its citizens can be captured and frozen in time. We see this in fundamentalism, whether it is Christian, Islamic, Hindi, Jewish or Orthodox, etc, etc. There is that tendency to look back in time with starry eyes and imagine; “that was when we had everything figured out, that was when there was some revelation from a higher power which we need to get back to”. When in fact “justice” evolves in very much the same way as species evolve, only a lot faster. There is no one sacred point in time where it stands still. Recently it has become part of the social contract in the US to allow members of the same sex the marry. Only twenty years ago this seemed outrageous and to many it still does. But if you think about it; it is really in line with “justice” evolving toward a more egalitarian position, a general trend over many centuries. Of course some one like Scalia might make the case; “soon we will be allowing people to marry their pets” (probably this vision his already been put out there as a boogie man to frighten people). If such a practice became socially acceptable to the majority of people then I would say that person is right. However, the very idea that it has potential to shock and scare shows it is very far away on our evolving scales of “justice”.
The main reason, or argument, or fear of accepting the reality of an evolving sense of justice is the fear of creeping relativism. Or maybe it would be better described as our fear of the natural world. The natural world has little use for any human sense of justice; an earthquake may topple buildings killing thousands of people, a tornado may tear through a town killing and maiming everyone in it. These are things which we can rationalize and allow for, but we can not accept it when such injustices occur for human caused reasons. So we create our laws in order to protect ourselves from human caused injustices. Some of us like to cling to a very rigid and unchanging definition of justice, it makes us feel safer, in general this group of people is referred to as politically “conservative”. Then there are those of us who are comfortable with a more pliable definition of justice one that we allow to evolve over time. We do not fear that somehow society will go off the rails and suddenly start calling “down”, “up” and “up”, “down”. Again this harkens back to that recurring duality and again I would say there is value and danger in both world views.
The danger of conservatism is; draconian rule. ISIS, and communism in general fit the conservative mold even though they are at ideological odds with what we consider the conservative movement in the US. They are at odds because they disagree about what brand of rigid justice should apply to society, they both agree that society should by governed some kind of rigid rules of conduct. Of course the fascism of Hitler, Mussolini, Franco and the Banana Republic dictators of Central and South America all fit the draconian mold as did Castro’s Cuba. Capitalism, Libertarianism and Neo-Liberalism all require a more evolving ideal of justice. So it might seem odd that the conservative movement in the US attaches itself strongly to the ideal of capitalism. This may be mere political expediency or maybe a way of seeking a kind of balance.
The danger of an evolving or loose ideal of justice is; chaos, lack of social unity and the rise of factionalism. Society is always in search of structure, even if it is small gangs, warring tribes, organized crime syndicates, etc etc. Society needs some kind of form in order to function. The dichotomy of justice is not the dichotomy of communism vs. capitalism or religion vs atheism it is the dichotomy of rigidness vs change.
Of course what I write matters only a little, I only write what happens to come to me. It is that thing which I do; I think and I write it down. I have used examples where I disagree with Judge Scalia’s opinions. There are in fact many things upon which I most likely would agree with him. I surmise this because I have known many conservatively aligned people, people who are drawn to a rigid definition of justice, and have found many areas of agreement. The idea that “justice” is something that should be written down clearly and should be agreed upon by everyone to whom it applies and respected by everyone to whom it applies is one of those areas of agreement. Humanity needs to protect itself from the vagaries of Nature as well as either the draconian or the chaotic states which are formed by people.
Justice tells us that each and everyone of us is important. In the larger scheme of things- the Natural World, this is not true. We are barely even specks that can be wiped away and forgotten in an instant. Justice gives us the illusion that we are special, that our stories mean something important. It is a good and necessary illusion, one that keeps us enthralled with our lives and the stories we spin around them. Those movies we created, those books we write, those campaigns we get behind; they are all small parts of the larger story we create. Without our sense of justice none of these things would hold our attention, we would be only passive and indifferent observers watching the world play out around us.