I’ve been neglecting my Hypotopia page because it’s purely theoretical in nature, and I don’t feel comfortable sharing how distracted my mind really gets with random stuff that pops into it. These are things that I sometimes think about while mowing the lawn or going on my circuit around the block. Instead of feeling ashamed of random hypothetical nonsense, I figure like my other thoughts “out is better than keeping it in.”
Recently I’ve had a few conversations and experiences with the idea of classism and justice. I’ll explain how they relate to each other in a bit. Justice was a word that got thrown around a lot in law school, and rightly so. Judges writing opinions are obsessive about the concept, except that it isn’t really defined all that much. This puts justice in the same category of treatment as obscenity: one knows it when one sees it.
What justice has to do with the law.
At its core, justice is used most often in public as being synonymous with fairness, finality, and rightness. Justice is fair because society demands that all people are treated fairly (regardless of the philosophical underpinnings); another way of putting it is that the law treats everyone equally. Justice is also final because it ends conflict between people rather than allowing a dispute to exist into perpetuity. Last, justice is righteous because it is grounded in the idea that government and society will promote that which is good and upstanding over what is bad and petty.
Practically, though, expressions of justice in common law countries have centered around punishing wrongdoing. When the government punishes people directly, it’s (most often) the result of a crime. A crime is some sort of wrong act that must be punished by society as a whole rather than just between private individuals. It’s why the state takes over handling these cases rather than just leaving the victim to sue on his or her own behalf. What’s interesting is that this idea has been in legal existence since 1066.
That’s right: we’re operating on fundamental legal principles in place for almost 1000 years.
Early on, punishment was quite different than today. Although the article I linked to does have problems, it does accurately point out that felonies (murder, arson, burglary, robbery, rape, kidnapping, theft, and battery, if memory serves) used to all be punishable by death. Over time, these punishments were relaxed. Nowadays, punishment generally has to do with four things: incarceration, deterrence, revenge, and rehabilitation. Somewhere these values get expressed in sentences, depending upon the circumstances and what sentencing guidelines will allow judges to get away with.
This is what we’ve equated justice to, in the long run. While we might think of it as an improvement over killing people by default, the same concepts that undergird such executions also support our current framework of thinking. A thousand years later, we’re trying to stop peasants from killing the King’s deer.
A note about classism.
Technically, classism has no place in the law. The Fourteenth Amendment specifically prohibits it. What I found in law school, and is only hinted at cynically in popular media, is that poor people are severely unable to get access to justice. This is because lawyers go into massive amounts of debt for legal education, and eventually they have to eat. So, they must get money in order to do what they do, and the best lawyers charge a lot so everyone isn’t knocking down their door.
This isn’t the kind of classism that we Americans were promised would never exist in our free land. Instead, it’s an institutional variety that functions because of how we operate rather than some intent. Poor people, therefore, must make do with low-quality legal work. Often they get public defenders who are overworked and underpaid. They can’t afford to take each case like it was on retainer; they must deal in volume. The net result is that poor people get punished more often than their well-to-do counterparts.
Is this really what we want justice to be?
I’m illustrating just two fundamental problems with thinking about justice. We look at it and think about fairness above all else, and our system rarely meets that expectation. Yet, because we’ve been doing it for so long, we persist. Sometimes people luck out and a bad person gets caught and punished for wrongdoing. Even then, notice how we de-humanized the person once he or she gets caught.
This was my thought, then: do we have to think about justice other than just punishing people? Why do I even want the law to hurt people? I would much rather have people who have been victimized overcome the trauma that they’ve suffered. If these were private actors, we’d demand that the victims be “made whole,” or put in the same position they would have been in before the crime was committed.
There also needs to be emphasis on getting people who commit crimes the support they need to not do it again. I don’t want to call it rehabilitation because oftentimes there isn’t anything to rehabilitate. If a crime was committed to obtain drug money, breaking the addiction ends the problem.
These are just a couple ways to look at justice differently. Justice doesn’t have to be about hurting those we convict or ignoring the victims of crime. I think a thousand years of running after serfs should end. We can do better.