On Justice
There are only two aspects of objective reality which relate to justice. The first is deontology, or our intuitions concerning the morality of free-will and the suffering inherent in self-aware beings. The second is consequentialism, or the necessary measures which ensure structure and order within a society of free-will agents. The former is what we label a principled approach to justice, the latter a consequential approach.
Free-will is crucial and fundamental to justice. Animals have no justice because their actions are taken out of necessity. Only choice will determine the contents of one’s intent (more on this later) i.e. out of all the possible actions available to the actor, some are good, some are evil. Those actions which we consider evil are punished precisely because the actor involved chose those actions over good ones.
The primary mechanism which justice uses for its ends is punishment. Punishment, as all debaters and criminal lawyers know, consists of five ends: 1. deterrence,2. incapacitation, 3. rehabilitation, 4. retribution, and 5. restitution. Only 4 is mainly deontological in character; the rest are consequential.
Each one of them deserves analysis.
Deterrence is primarily a way of ensuring more order within society. Only if a criminal knows he will be punished for his illegal actions will he be deterred from his criminal misconduct. There is a counterargument which suggests that criminals do not consider being caught and hence are not affected by deterrence. This is facetious. Criminals always consider being caught just as all people consider dying — it is the inescapable possibility of one’s terminus in social and legal standing.
Incapacitation ensures that more crime cannot be committed. Now this purpose for punishment is controversial for the precise reason that it is punishing the criminal for a future, uncommitted action rather than a specific actual crime. It is worth noting here that Jewish law has never entertained the concept of imprisonment for this reason.
Rehabilitation is a practical way of ensuring that criminals are not forever condemned by their actions ( from which we can infer a slight deontological reason of forgiveness), that future criminal actions will not be committed, and so prisons are not overcrowded and do not drain resources from the state. Most modern criminal lawyers consider this the most humane approach to justice.
Retribution is both deontological and consequential. In principle many victims of crime desire the perpetrator to feel either the exact same suffering they have, or a proportionately less form of suffering. This reason arises from the soul — crime is metaphysical in this way as it introduces the horrific sensation of pain and suffering which any free-will agent can sympathize with, and who wishes to mitigate such feelings in the universe. In practice, retribution deters blood vendettas, the disintegration of society into tribalism, and vigilantism. These three aspects of practical retribution are united in the concept of impartiality and partiality which shall be discussed later.
Restitution is a practical punishment which both compensates the victim and degrades the financial standing of the perpetrator.
These five purposes are variable and should be taken into account by a judge, or an impartial figurehead. And speaking of judges we may now move onto the concept of impartiality and partiality. Justice must be fair — these two terms are actually synonymous — otherwise life would be based on chaotic whim, leading to huge power differentials in society and its eventual collapse. The only broad method of fairness we have is objectivity — that one’s own biases, opinions and feelings (subjectivity) should not sway the outcome of the case. It is arguable whether one can reach pure objectivity, but the extent to which we approximate it, is the extent to which a society will be just.
I want to elaborate on a curious theological argument for impartiality. Imagine you were God, deciding the fate of a criminal. How could you ensure complete impartiality for a crime that scars a victim? The only way is to recuse oneself from the matter and allow the objective facts of the case to decide the outcome. It is for this reason that the Lord recommends equality of justice, “an eye for an eye, a tooth for a tooth”. Most people find this too brutal to accept, barring certain Islamic countries like Saudi Arabia, which follow strict Sharia law. Another reason for a complete equality of justice, comes from Kabbalah. Kabbalah suggests God’s wisdom is divided into two opposites, the left hand side of severity and the right hand side of compassion. These two must be balanced completely to ensure fairness. Severity dictates equality of punishment; compassion rules out disproportionate punishment.
Another crucial aspect of justice is determining intent, or the motivation behind a free-will action. Intent is what makes a criminal act principally criminal, as other laws which punish acts without intent serve only practical, social purposes. Intent is derived from our intuitions around free-will and how any reasonable actor should behave in specific circumstances. An accident is excused on the fallible, precariousness of human reason; a malicious intent, however, conjures the worst, most heinous emotional and logical response from observers and judges. Intent will either mitigate or exacerbate criminal punishment because it arouses either sympathy or antipathy for the perpetrator.
Justice, we may end off on, is two pronged: principled and practical. In principle justice exacts metaphysical recompense for the suffering he has caused another self-aware being. In practice justice regulates society in a predictable, stable way.