To start, I think it's important to address conceptions of legality and justice. Often, especially in our practical usage of the terms, the two are tied together: it is the role of the legal system to carry out justice. Yet, it would seem that there are occurrences where many would violate the law in order to do what is 'right' (For an example of this, look to the many European citizens who hid and sheltered Jews during the reign of the Third Reich). Here, there is an appeal to an idea that there exists a transcendent ethic of right and wrong beyond what can be defined by legalities, or put in different terms, there may be areas where natural law and laws of the state either do not overlap or are in direct conflict with one another. This idea has been long debated, notably in Sophocles's Antigone, over whether it can ever be morally acceptable to subvert the laws of the state. Should we accept the idea that there are moral rules that supersede those of the state, it would mean that, in some cases, the actions of the state in the name of justice are unjust themselves and should be met with punishment.
On the other hand, we might argue that the laws of the state are the end-all-be-all of behavioral rules and that should a person take an action that violates the laws of the state, he or she deserves to be punished. French social theorist and philosopher Michel Foucault essentially says that this is how the state implementation of justice works: not on the basis of drawing from some transcendent rules of morality, but rather to ensure an obedient, conforming population in the name of creating a better society. We punish crimes like drug use and vagabondage because society wishes to promote the idea of the rational, conscientious individual that participates in society. Justice, then, is not a moral good, but rather an exercise of power.
We can see this power relation in the way that crimes are framed as an offense against society as opposed to offenses against the victim. In our criminal courts, prosecutors are representatives of the state. In fact, trials have names such as California v. Greenwood or United States v. Windsor. In criminal cases, the individual is placed in direct opposition to the state and the rest of society. When he or she is punished, it is a unilateral penalty levied by the rest of society that the punished individual has no say in. When the individual is incarcerated, he is removed from society and, as Foucault points out in Discipline and Punish, by making time in incarceration part of the punishment, the prison expresses concretely the idea that the action has injured society as a whole.
What this essentially leads us to is a Nietzchean conception of might makes right. Foucault stated this himself in a 1971 debate with Noam Chomsky:
It seems to me that the idea of justice in itself is an idea which in effect has been invented and put to work in different types of societies as an instrument of a certain political and economic power or as a weapon against that power.What Foucault is getting at is that justice, as exercised by the state, is called justice because it is wielded by those in power. And while we may justify the practices of the state's governance of legalities and justice with a Hobbesian social contract, it seems that citizens of the state do not have any real way of actually consenting to this social contract. They are, instead, mostly governed by the fact that the state holds power.
There are two consequences of Foucault's notion of justice as power that I would like to discuss. The first is the punishment of the revelation of state secrets or criminal activity of the state. When Edward Snowden planned to release information about the NSA's PRISM program, a blatant violation of the United States Constitution, he fled to a different country in fear of retribution from the United States government. The treatment of Snowden and other whistleblowers who point out crimes of the government further demonstrate Foucault's illustration of justice as a Nietzchean function. Because the state has a monopoly on the exercise of justice, any action that harms the state, whether or not it is beneficial to her people, is treated with harsh punishment, force, and coercion.
Secondly, I want to point back to the idea of justice as an instrument of both political power and also a weapon against that power. If justice merely becomes an exercise in demonstrating force, then those to whom the force is applied should be seen as justified in fighting back and taking power for themselves. In a lot of ways, I believe this draws a parallel to Hegel's master/slave dialectic, insofar as oppressed populations can also use justice as violent tool against their oppressors, since whoever possesses more power is the one who chooses what defines justice. In essence, this implies that a nation or state that uses violence and coercion to ensure justice is done cannot make complaints about being attacked by those it is applying violence and coercion to, since the state is endorsing a worldview of retribution and force. This is by no means an excuse for violence done in the name of justice; rather, it simply shows the logic of the age old axiom that violence simply begets more violence.
The first video above is footage of American citizens celebrating the death of Osama Bin Laden. The second video is of Palestinians celebrating the 9/11 attacks on the World Trade Center. While there are certainly very relevant and important differences between the two, both depict ecstatic celebrations of the death of others in the name of justice being served. When force and justice are tethered to each other in a way that they cannot be unbound, I expect this is the way the world will continue to be.
Other Thoughts and Considerations
- The power of the state is not always exercised by those in control of the state. Power, I think, can be much more diffuse and invisible than is tangible, especially in respect to the way members of societies interact with one another. Foucault's chapter on Bentham's Panopticon in Discipline and Punish is a great tool for understanding this, and also a great tool for examining the NSAs recent actions.
- In the Chomsky/Foucault debate, Chomsky had an interesting response to Foucault's conception of justice : "And in such a circumstance, the kind that you describe, where there is no question of justice, just the question of who's going to win a struggle to the death, then I think the proper human reaction is : call it off, don't win either way, try to stop it-and of course if you say that, you'll immediately be thrown in jail or killed or something of that sort, the fate of a lot of rational people."
- Next week's topic will likely be on the intersection of neuroscience and justice.
Enjoying reading your blog posts, Spike. A couple of reactions:
ReplyDelete"What, I wondered, made it so important that the apparatuses of the state be responsible for punishment?"
If not the state, what are the alternatives? In some societies, there are religious courts and tribal courts. Seems to me those are less desirable alternatives. In my mind, the state is the least bad alternative.
And the idea of justice as a raw exercise in state power is tempered somewhat by the concept of an independent judiciary, right? Those elements of the state who wield executive and legislative power are not the ones who get to make judgments about guilt and punishment.
Of course, the actual degree of separation and independence is key to making this concept viable. Apparently in the last three years, no requested FISA warrants were rejected by the FISA court, so one can legitimately question just how separate this particular limb of the judicial branch is.
"If not the state, what are the alternatives?"
DeleteA more, local, community-oriented focus on justice, I think would lessen/weaken locations where the exercise of justice becomes oppressive. For example, a more locally based system where a focus was placed on the actual harm between the offender and the victim and how that harm could be repaired, as opposed to a system in which the victim of the crime is on the periphery and the conception of justice is to give to the criminal his just desert. Of course, this alternate conception is not without it's problems either: those closer to crimes tend to be more vindictive about punishment by virtue of greater emotional investment. It also brings up issues with 'victimless' crimes (or crimes where victims are widespread or harm is diffuse)
"And the idea of justice as a raw exercise in state power is tempered somewhat by the concept of an independent judiciary, right? Those elements of the state who wield executive and legislative power are not the ones who get to make judgments about guilt and punishment."
I would say both yes and no. In theory, the courts are supposed to be a '3rd party', but they're still instruments of the state that function the way they do because of the laws of the state. Punishment can be somewhat decided by the courts, but they are given a fairly strict legal framework within which to work. I think that for Foucault, it's not so much about the direct exercise of power from the executive branch: in fact, a lot of his work in Discipline and Punish focuses on how a democratized middle class' emphasis on punishment reform has led to its own kinds of violence and oppression. In this way, power is not so much an intentional, willful exercise as it is a diffuse and widespread practice that happens without a ton of conscious knowledge of it.