How are law, judgement and justice related? I have pondered a little on this topic on my way on the train this morning and I thought that it would be nice to write a little essay about it and post it on SP. It might be interesting for other lawyers on SP, and the non-lawyers on SP even.

It is usually useful to first lay out what we are talking about, so there we are: What is a law? A law is a rule by a higher authority to regulate proper conduct in a community, or in life. The biblical commandments for example are classical legal rules from ancient times, just like the codex of Hammurabi, and our modern laws.

How is law brought to effect? A law isn’t brought to work as a mere reflex – a rule in being, by being, cannot generate a result.
Law is brought to effect through either a gremium, or a ruler or a judge – and their executive organs or persons. However it is brought to effect – it is done through an intermediary, law in itself has no value and no effect.

Law needs either general acceptance or enforcement. A law that is ignored and not enforced is toothless. A law that doesn’t make sense and is therefor ignored, is worse, it undermines respect for the law. A law that is excessive is even worse – as it leads to unfair results and that as well undermines respect for the law.
Finally, a monstrous law is worst, as it abuses power to seize an advantage, usually for a ruling group (just think about the laws for Jews under the Nazis) – that is a perversion and leads unavoidably to injustice.

A law isn’t an end in itself. A law always is a tool to achieve a certain goal, usually a workable solution – workable solutions can be described as such solutions that are perceived as just or acceptable by the majority in a population.

A law rule is abstract. We, however, live in the real world, in flesh and blood. Life is complex and unpredictable. So law needs to be projected onto life, it needs transfer.To use a law, this rule, as a tool you need to be able to handle it. I’ll demonstrate how that works in an example of a simple theft (along the lines of German law) – so this is the case:

Rule: Theft is forbidden and is to be punished with bla-bla-bla Case: Unobserved and unasked, Peter takes Lucy’s purse from the pocket of her coat, and takes five pennies from Lucy’s purse and puts them into his wallet. He then puts back the purse in her coat and moves on to spend them on bread. Thesis: Peter could have commited theft. Definition: Theft is (a) taking away a (b) foreign thing from it’s owner (c) against his will. Sub-Definitions and subsumptions:
</font> Taking away is to remove the thing from the owners personal sphere of control to your own or some third person’s sphere of control. The five pennies originally were in Lisa’s purse in her sphere of control. Peter took the pennies from Lisa purse and put them into his wallet, transferred them into his own sphere of control. So Peter has taken away the pennies. The pennies must have been foreign to Peter. The five pennies were Lucy’s property – the fact that she had them in her purse suggests that. So the pennies were foreign to Peter. Finally, the transfer of the five pennies from Lucy to Peter must have been against her will. A person has a suspected general will of possession for all the things in their personal sphere of control. Keeping the pennies in her purse, Lucy sure had no intention to derelict them, so her will of possession can be assumed. When taking them Peter didn’t act in agreement with Lucy, neither did he have her allowance to take the five pennies (clearly, agreement would negate the case for theft). Conclusion: The criteria for theft are met by Peter’s action.
Simple enough. In this case Peter would be found guilty of theft.

But what when I modify the case? Peter was so poor he couldn’t buy food if by not stealing the money needed to by it. Peter hadn’t anything to eat for three days and was crazed from hunger.To give him the full sentence for theft anyway would be harsh and inadequate in both cases, probably be perceived injust and excessive.

What I want to demonstrate with my example is this: The law needs transfer to be applicable on real life.The final sentence isn’t a mere reflection of the rule of the law – there must be more to it.

The mechanism that applies law on events of real-life is basically judgement. It isn’t just the understanding what the norm means – but understanding of what happened in real-life and the process of finding a balance between the actual rule of the law and the mitigating circumstances of life, such as culpability or exculpation, or justification or lack thereof.

The purpose of justification is self-evident – yes, you did slap Peter on the head, but he attacked you first by kicking at your leg and you just defended yourself. Or: Yes, you did damage the fence by breaking out a club, but you did so to fend off a mad dog trying to bite you.

Culpability or lack thereof is the second aspect and generally speaking lack of culpability denies punishment. If a person is so drunk or stoned that he or she is unable to act controlled anymore that negates intent (he would be punishable for bringing himself in that state though).
Being outright crazy would be another example. The personal situation is another aspect – an abused woman killing her tormenter not in self-defense but pre-emptive would likely be exculpated or get a rather mild sentence.

Or how about this example with an imaginary norm: “Who destroys foreign property is punished like bleh-bleh-bleh.” Imagine you did break a window – by slamming with your shoulder against it – but that was because Peter pushed you and you couldn’t do anything against it.
Who’s guilty? Who’s responsible for the broken glass? Techically you – because you in person destroyed it. But of course that can’t make sense, it was Peter who was using you like he could have used a brick – you didn’t even have intent, and are much less culpable … to sentence and punish you anyway – only because the letter of the law sais so – would be injust.

So, seemingly, there is more than just the letter of the law.

What I want to stress is that a judge has to find a balance between the law of the norm, the deed in real-life and the mitigating circumstances of justification, and personal guilt and culpability to come to a just sentence.
That all may sound pretty self evident but that only seems so because the examples are so short and simple.

I wanted to demonstrate that law mustn’t be a mere reflex. It necessarily needs to be transferred by judgement to come to a just and fair solution.

So what is my point?

So what I was pointing at all the time was in a wider sense, :rolleyes: Horrors! :rolleyes: , abortion, and, as an emphasis, the unbearable results of one-dimensional rule-application on three-dimensional real-life events.

Any statement, or worse – sentence, lacking judgement is fundamentally injust and unfair to the persons in the actual situation. A blinkered judge unavoidably displayes poor judgement.

Any person rigidly applying the rule of law and the rule alone on real-life events without taking into account mitigating circumstances is an incompetent judge.

That is even so when you’re not a lawyer. It is also irrelevant if we are talking about the German penal code or the bible. It applies, it has to apply, whenever you use a law.

Law cannot be applied without measured judgement if you want to achieve justice.

[ December 22, 2004, 12:21: Message edited by: Ragusa ]

Well other than not knowing what a gremium is (it is absent from my dictionary) and having some amusing images flitting through my head of executives organs, I have to agree you have nicely summed up my general inklings of what the legal system should be about.

A gremium is a body, usually a commitee.

Yes, justice is crucial to law. As a matter of fact, the law should serve justice and everyone in the enforcement and judiciary should keep this in mind.

And yes, there's more to the law than the letter.

However, the cases like Peter stealing from Lucy don't necessarily have to be outside of the letter of the law. There are many ways of achieving that: exculpating circumstances, circumstances excluding illegality of the act, next to no harm done, and so on. Circumstances can make the act legal (acquittal here); they can make the act illegal but render the person unaccountable (like lack of consciousness); they can exculpate the person (there was no fault). The results will vary: we can have the act declared licit and legal (acquittal), illegal but unharmful, illegal but justified, illegal and unjustified but committed by a person who can't be held accountable for psychic circumstances (from illness to compulsion).

Following the subservience to justice and dependence on internal and external circumstances that surround the act, I believe the rule should set realistic expectations. If the legislator intends to forbid an act but exculpate most of the offenders or commute most of the sentences, he should know what he's doing. Perhaps it would be better to rephrase the rule. If he doesn't even intend to exculpate the persons or commute the sentences, it's only worse. Under no circumstances should anyone in the legislative or judiciary assume that "collateral damage" is unavoidable. It's better to let ten criminals free than to sentence one innocent person.

Justice extends farther than realistic requirements and correspondent punishment. I am a strong believer in natural law. Positive law alone (i.e. codified or otherwise announced will of the authority) doesn't do the job for me. So much as I consider myself lawful and I believe in the law, I could provide examples of stupid rules or blatantly unjust ones that I wouldn't consider to bind me on a moral level. Natural law - even if we bring it down to common sense and common human values - must be there. Rules for reasonable lawmaking aren't enough - they don't negate strongly enough the right of the authority to make any law it sees fit. The problem is, criminal courts can't go around the positive law and judge under the natural law as they see fit, either. That's because the law has to be the same for everyone and that won't be achieved if there's too much room for interpretation.

As an example, in the Polish law, there are three components to an offence (felony or crime): forbidden act, social harm, culpability (the person must have had no right to commit the act and his behaviour must be wrong). Absent one of them, there's no crime or felony - there's just a forbidden act. This means that children under 13 or people with certain illnesses can't ever commit a crime or felony. If Peter stole a mere couple of pennies to buy bread to satiate his hunger, without damaging anything and returning the wallet and the rest of the money intact, the judge would most likely rule that there were no or next to none social harm and therefore no felony. Also, he was crazed by hunger, so his consciousness and ability to govern his actions was at least limited. Dire necessity would be debatable, as he always could have asked for the money to be given to him, or for the bread to be given for free (or for work, or on loan). If he had been too crazed to think about asking, it speaks for limited capacity to judge or direct his actions rather than dire necessity. Sure, he was in dire need of food and maybe even the money to buy it, but he wasn't in dire need of stealing it per se. However, this depends on how far we stretch dire need or grave necessity - the way it is sometimes understood, Peter could qualify. And it would surely be more desirable to stretch dire necessity too far than to sentence Peter for theft like a simple thief. I still believe he owes the money and should return it. This way it would be a bit like, well, unvoluntary loan rather than theft per se.

As for the woman who kills her tormenter in order to interrupt her suffering, I believe she should be totally acquitted even if she had been fully able to judge and direct her actions.

If there had been no way of interrupting the undue suffering other than killing the tormenter, I believe the right of the woman to freedom is superior to the tormenter's right to life. There should be no mitigating circumstances, no commuted sentences, no pardons, nothing. There should be exculpation or complete acquittal. I opt for complete acquittal - if you ask me, there was no crime whatsoever on the part of the woman.

Especially if rape is included in the torture, I believe it should be legal for the woman to elect to kill the rapist to prevent penetration (or any other sexual activity) even if calling her friends or the police or incapacitating the offender on her own would allow her to break off from it even a couple of seconds after it already started taking place. Doesn't mean I believe she should be sentenced to any punishment if there actually had been any other way of freeing herself. But here I would opt for lack of punishment rather than calling the act legal. What's more, I would make it the prosecutor's job to prove that there was a different and ostensible way of defending herself (not just breaking free after he starts raping, but avoiding him starting it) than killing the offender.

I would extend this to all cases of the enemy trying to incapacitate you unless you know he acts in error and are likely to be able to explain yourself and be set free (e.g. when being subdued by a policeman who takes you for the man he's pursuing). After you're pinned or tied up, the enemy can do what he wants to you and no one ever should be required to allow that to happen. Even if the offender will die in the process of defending yourself for being incapacitated. Any law that says otherwise is an example of what I consider stupid, unjust and morally not binding.

[ December 22, 2004, 14:42: Message edited by: chevalier ]

Common sense has to be included in every law. For example, if unauthorized property damage, as per the one example Ragusa stated, were illegal, then there would need to be two distinct charges. The first would be willful destruction of property, for cases where the person threw a brick at a window and broke it. The second would be Negligence causing property damage, for the situation you described where two guys were horsing around and a window got broke. In both cases, Restitution should be made, and if warranted, a punishment given, whether a fine, probation or incarceration, based on severity and apparent degree of malice. If the brick had a note attached with a racial slur, and the window was on the home of a member of said race, then the punishment should be more sever than a random act of destruction.

Secondly, In cases of theft, I would expect theft for survival to be treated more leniently than theft for pride, greed or amusement. If a man steals bread to feed his family or money to buy food, then some service could be performed in place of restitution (like sweeping or mopping the floor of the store where the food was stolen from), but someone who robs the cashier to buy drugs would be looking at jail time.

Third, Laws should reflect cultural morality. If a certain practice is forbidden amongst the majority of the population it should be illegal without challenge based on constitution. This way a judge can't be forced to say that a pedophile can legally have child pornography because to deny him this restricts his freedoms, as stated under the constitution.

I'm not a lawyer, but I do have opinions...

If a certain practice is forbidden amongst the majority of the population it should be illegal without challenge based on constitution. But this doesn't always happen. In Poland, for example, where a large percentage of the population is Catholic, the majority are probably opposed to abortion, yet abortion is legal there. Certainly, if most of them are Catholic, then abortion is "forbidden amongst the majority of the population".

But this doesn't always happen. In Poland, for example, where a large percentage of the population is Catholic, the majority are probably opposed to abortion, yet abortion is legal there. Certainly, if most of them are Catholic, then abortion is "forbidden amongst the majority of the population". In any situation where the government is considered to be accontable to the people, such actions are considered to be a betrayal of that confidence. It is hoped that that will be rememberred at election time...

It will. They already have less than 10% support.

Third, Laws should reflect cultural morality. If a certain practice is forbidden amongst the majority of the population it should be illegal without challenge based on constitution.I'm really not comfortable with this idea. It utterly disregards the concept of minority rights.

First of all, yet late, Chevalier:
I'm very well aware that mitigating circumstances are codified in modern law, in fact, that they have to be. I left that out in order to simplify and to clarify my point.

Second, A Master:
You made a very good point when you referred to minority rights. The idea of cultural morality is a very questionable one IMO. Laws should reflect cultural morality. If a certain practice is forbidden amongst the majority of the population it should be illegal without challenge based on constitutionThink of it the other way round: What when people think certain things should be allowed or be left unpunished?

Think about ancient greece, where paedophilia was socially accepted. In Germany's wild and nasty thirties and early fourties violent antisemitism was pretty prevalent in society - your concept would basically legitimate laws reflecting that - if the majority decides or thinks so ... that was what Nazi judges dubbed 'Gesundes Volksempfinden'. 'Gesundes Volksempfinden', actually a very unhealthy thing, was justification enough to detain and later hang or shoot people for telling jokes about Hitler.
Or take todays Germany, where a lot of people look at tax fraud as a minor misdemeanor, like justified self-defence against the greedy state. Reason enough to leave tax fraud unpunished?

I'm very unconvinced about the concept of cultural morality. It isn't an expression of liberalism but a very dangerous - empty - form of egalitarianism.

Todays political disputes become more and more fact free and their presentation more and more manipulative and emotional. One example: America's ex-terror czar Clarke wasn't judged by his critique on Bush and his crew but by credibility. That he was actually right on every point didn't play a deciding role in the diuscussion, rather the allegations of self interest, the alleged axe to grind and whatnot: "Aaah, he wants to sell his book, and he's angry because he got sacked! He is biased!"

The message is: "Never believe biased people."

So what, the US right does that every day. So what's the problem - bias or dissent?

A Jew, who survived the Warsaw ghetto uprising, raving about nazis is certainly biased - but is he therefor wrong?

So how about Clarke's arguments anyway? Sadly, they didn't play a role - people were, and are, so tired about paying attention to partisan bickering that they stopped giving attention to the dispute about the points Clarke made - and the very important discussion died and faded away from public awareness. With playing the partisan card the US right propagandists gave Clarke the "Biased! Attention!" label and people stopped listening to him. So they stopped that discussion about his points dead in the tracks. Because they couldn't be attacked on facts the US right beat him on the field of emotion and credibility.

It is illuminating to look back on the threads and arguments on Clarke here on SP (and to then watch 'Outfoxed').

There are things that mustn't be left to a plebiscite in order to prevent exploitation and abuse. This becomes more important the more media influenced we become. And that is the key argument against cultural morality.

[ December 25, 2004, 22:32: Message edited by: Ragusa ]

Actually Ragusa, I hadn't thought of 1930's Germany. I was more complaining that a small minority can mock something that a larger percentage hold sacred.

I was more complaining that a small minority can mock something that a larger percentage hold sacredI don't see this as being something the law should address. Freedom of speech is more important than one's right to go through life without being offended.

But should minorities have the right to tell a majority what they have to allow?

Minorities? No. The constitution or an equivalent? Absolutely.

See: civil rights in the US, circa 1960.

Sort of what AMaster says. Minorities do not have the right to tell the majority what they have to allow. However, in any democratic nation, those minorities are still allowed to have a voice, and to bring their ideas to the majority. Now, there is nothing that says the majority has to agree with the majority, nor does it say that by vocalizing their concerns that they will be addressed. It's simply that they have the right to attempt to get their point across. Whether or not they sway a considerable portion of the population is an entirely different matter.

But the Majority should reserve the right to tell them to sit down and shut up when they've finished having their say. On some issues it just feels like the politicians are catering to these groups to increase their own support--even to the risk of offending those who voted them in in the first place...

But the Majority should reserve the right to tell them to sit down and shut up when they've finished having their say. This is exactly what the majority is NOT allowed to do. They aren't obligated to listen to the minority, or to change the way they do things, but one thing they clearly CANNOT do is tell them to shut up. It's an obvious infringement of free speech.

So I should have the right to go to India and demand a steak dinner? Or to get drunk in Muslim countries? Why should we, the so-called enlightened west, have to cater to a minority, possibly offending the majority...

As I understand it you are not a citizen of India so you have no right to decide how they do their things in India, when you become a citizen you can start protesting. The minority Aldeth was thinking about are citizen of a country not some tourists.

Majority should allways listen to the minorities and allways take them to consideration. The majority has in fact a responsibility to take care of the minorities and see to it that they get equal treatment, and the minority should allways have the right to protest whenever they feel that their rights are not met. It is then the majority's responsibility to consider if the minority is right or wrong in their demands and hopefully that decision will satisfy both sides.

Why should we, the so-called enlightened west, have to cater to a minority, possibly offending the majority...Y'know, I'd be willing to bet that a majority--or at least a damned significant proportion--of the population of the south was offended by Rosa Parks' actions. Were Rosa Parks' actions therfore wrong?

Or, even better, Emmet Till. He did something that offended a great deal of folks. That is, he spoke to a white woman. He was killed for that. His murderers were aquited.

That's what happens when a majority gets to violate the rights of a minority at will.

This topic is about (at least I understand it as such) the relationship between law and justice, with a particular focus on criminal justice.

Discussions of minority rights and such can be taken up in another thread.

But if we strive for justice for the person, the committer of the crime, where do we stop?

For example, let's take Marc Dutroux, who is quite well known in West Europe, for abducting, raping and murdering a couple of young girls.
Almost all people would call him 'vile and evil', but we can come up with mitigating circumstances for him too, right?

Marc was driven by a couple of desires, lust and sexual power over young girls. This drive was distorting him so badly that he actually committed the deed.
Could it have happened if he was stronger of will? Can it be blamed upon him that he had not enough will to stand against the desire, or that he actually had the desire?
What if we see this desire as a handicap, we see autism as a mitigating circumstance, so why not pedophilia, or even better, a lack of will!

So how can we blame it upon him to:
- be born as a pedophile.
- desire for sexual power over young children, partly as a result of his pedophilic nature,
partly for a reason many rapers would share, traumatic oppression perhaps when he was young?
- have not enough will to stand against these desires.
- actually commiting the deed as a cause of having not enough will.
- 'be' a monster as result of committing the deed and getting caught.

Gee, if these are not mitigating circumstances, then what are?
Sorry to have arrested you Marc, happy vacation in Vietnam, I'm sure you're not going there for the child-prostitutes, and write a card will ya?

If we would arrest him then, and sentence him for live, would that then not be injust?
The world is not meant to be just.


And about the minorities thing, justice and law are defined and uphold by the majority.
It's just that the majority sees that if they let the minorities 'get oppressed' then it's not 'truly a democracy'.
And because the ideal 'democracy' is so battered into the heads of the majority when they were young, they believe that democracy is the one and only just governmental system.

[ January 02, 2005, 00:17: Message edited by: Morgoth ]

Beren, I believe the tangent on minority rights that seemed to thread jack this debate seems to have sparked from part of my thoughts on the original topic:

Third, Laws should reflect cultural morality. If a certain practice is forbidden amongst the majority of the population it should be illegal without challenge based on constitution. This way a judge can't be forced to say that a pedophile can legally have child pornography because to deny him this restricts his freedoms, as stated under the constitution.My point would be that laws should reflect the morality of the majority. It was meant to close the door on certain things that one minority could force on society that would be an outrage (child pornography, offensive practices under the guise of religeon). It has been seen in the recent election in the US where 11 states voted NOT to allow same sex marriage. I was defending the right of the majority to make that law.