Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

And the prison priests are decent… Why have a trial when we know they’re guilty?

2014 was a year for interesting legal issues that, by and large, went unexplored.  I could spend 700 words explaining why we’re bad at discussing legal issues — a complicated mix of a disinterested public, of the borked political intuitions of prominent legal writers, and of a pop-culture which makes legal concepts difficult to elucidate.  Instead, I want to look at something slightly different: what did public reactions to the big issues of the year say about the way the public views justice, the legal system, and the rule of law?

In September, people seemed outraged that Oscar Pistorius was found not guilty of murder.  In November, a jury decided not to indict police officer Darren Wilson for the death of Michael Brown (whose death resulted in the Ferguson protests).  And, as more information was released about Man Monis — who took seventeen hostages in a Sydney cafe in December — we entered into a discussion about how this guy could have been granted bail a year earlier.

Owen Dixon, Chief Justice of the Australian High Court in the 1950s, is famous for professing his faith in ‘strict and complete legalism’ and it’s this attitude which dominates legal conversation.  Moral, ethical, and pre-theoretical intuitions about justice (in a non-legal sense) don’t tend to enter a lawyer’s lexicon unless the lawyer is discussing law reform.  Even professional ethics taught to lawyers is predominately rule-based, with little emphasis on more sophisticated understandings of justice.

Yet when Pistorius, Wilson, and Monis entered into public discussion, we had a reversal of this position.  The public was less interested in the formal guise of justice — whom we might personify as a mild-mannered, softly spoken Clark Kent — and wanted a resurgence of the resolute, definitive, transcendental visage of justice — our Superman.

I’m going to stick with this idea of transcendental law, which I don’t think it’s the same as ‘fairness’; I think it’s probably closer to ‘vengeance’.  But what is the relationship between justice and fairness?

In Cyropaedia, Xenophon recounts a story where the young Cyrus explains a lesson in justice from his tutor:

There were two boys, a big boy and a little boy, and the big boy’s coat was small and the small boy’s coat was huge. So the big boy stripped the little boy and gave him his own small coat, while he put on the big one himself. Now in giving judgment I decided that it was better for both parties that each should have the coat that fitted him best. But I never got any further in my sentence, because the master thrashed me here, and said that the verdict would have been excellent if I had been appointed to say what fitted and what did not, but I had been called in to decide to whom the coat belonged, and the point to consider was, who had a right to it: Was he who took a thing by violence to keep it, or he who had had it made and bought it for his own? And the master taught me that what is lawful is just and what is in the teeth of law is based on violence, and therefore, he said, the judge must always see that his verdict tallies with the law.

It’s a fascinating little story — Cyrus uses this story to explain that he now understands all there is to know about justice and can therefore train in martial arts instead of attending law lectures — but also starts to reveal interesting intuitions about law.  It’s not about best outcomes (fairness) but about best procedures (legality).  There is an original absurdity: a little boy with a big coat and a big boy with a little coat.  There is an act of violence: the big boy forcibly swaps the two coats.  It is the role of the law to correct the unlawful act of violence and return the parties to the original absurdity.

Some people say that this is because law should not make value judgements: the error here was to base judgement on the idea that it is ‘better’ (a value term) for people to have coats that fit them.  But this disguises the other value judgement: that property ownership should be protected against all other considerations.

Returning back to our three cases.  The prevailing public attitude is that there should have been some particular result regardless of whether or not there was a procedural avenue to reach that outcome.  In some cases, this is because the procedure itself is considered to be unfair (for example, the procedure is unlikely to indict the white cop killing the black kid).

In this way, we could characterise the grievance as one about fairness.  It is unfair that some groups of people get much better outcomes from the apparently ‘neutral’ process.  It is unfair that the law protects an absurdity and doesn’t correct deeper problems.

I think this is a charitable reading.  The Pistorius decision didn’t cause outrage because we thought it was unfair; it caused outrage because everybody knew he was guilty.  The Wilson decision didn’t cause outrage because we thought it was unfair; it caused outrage because everybody knew he was guilty.  Man Monis shouldn’t have got bail, we argue, because we all knew he was guilty even though we all didn’t know who he was at the time.

In this sense, we want the legal system to do something that Cyrus’ teacher overlooked.  We want the legal system to legitimise our desire to enact vengeance: ‘what is lawful is just and what is in the teeth of law is based on violence’.  We don’t care that the bigger boy used violence to create a better society where two people had coats that fit them; we just want the legal system to punish the bigger boy for using violence.  To any extent that there’s a question of guilt, the question is ‘How guilty is he?’ and not ‘Is there a chance he is innocent?’

We are increasingly conditioned towards thinking this way.  ‘Name and shame’ campaigns on social media, for example, rely entirely upon this intuition: this person needs to be punished, take my word for it and share this information.  Various crimes — particularly sexual crimes against women — are difficult to prove and even more difficult to get convictions, thus we have ‘I believe the victim’ campaigns.  Rough music of every kind is returning, with the public just knowing, en masse, who the evil doers are and how they need to be punished.

When we don’t trust the public enough to make evidence-based decisions about policy, would we really trust them to make evidence-based decisions about lynchings?

Entering into this space and helping the public to understand the problem is the role of the legal theorist.  When these issues arose in the public debate, we really needed public intellectuals to help us form the language to discuss them meaningfully, intelligently, and — yes — aggressively.  But we don’t have them.  Instead, we have former journalists and former lawyers mumbling mostly incoherent slogans as if this were an adequate substitute for thought.

How we resolve these issues is fundamental to our self-identity as a community.  How do we treat criminals?  To what extent do we presume innocence, and to what extent is that merely theatricality to feed our narcissism?  How meaningful is it to say that we’re governed by the rule of law (whatever that phrase might mean) when we’re already holding rocks ready for the public stoning?  Do we now perform justice as a form of popular entertainment with cases broken down for public consumption in a weekly podcast?

Even this opens up bigger questions: do we neutralise and hollow out the legitimate rage of people who are denied justice through the system by cerebrally, coldly, and clinically controlling the language in which we discuss the issues?

Why have a trial when we know they’re guilty?  2014 didn’t give us satisfactory answers, even after the questions were hinted at in 2013.  Something is definitely rotten in the system and the public should be brought into the conversation about what sort of justice system we want, and what sort of outcomes we would like to see.  Maybe we do want people to have coats that fit them after all.


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