Wednesday, July 13, 2005

Law and Order?

Ok, my roommate Girish, Gopi and I were watching Law and Order: SVU today and i started a discussion. Basically what happened in the episode is that the ADA or assistant district attorney essentially broke the law in order to see justice done, to get crucial evidence in order to put an "alleged" child molestor away. So I said its a sad state in our society that we place an higher emphasis on procedural justice over substantive justice. Procedural justice equates to protection of individual liberities, due process of law and so on (it is an overly simplistic view i'm presenting at this point). A police officer must first met certain basic requirements before they are allowed to search someone's place or car, any place where an individual would have a reasonable expectation of privacy. This is necessary to ensure that the government cannot intrude into our lives at its whim and it is a very strong principle in our society, as it should be, especially when the government can be capricious.

Now, what is the purpose of criminal law? It is to maintain order in society and protect one citizen from another citizen's actions as to their property, life or liberty. This is the common answer but a deeper analysis as strongly and convincingly argued by many philosophers including Hegel and Kant is that criminal law is about retribution. Even deeper than that is the idea that law brings about order which brings up happiness and contentment with one's fellow human being. Underlying all that is the idea that we must all get along and if we don't something must be done to ensure we do, when we do something wrong there is a intuitive desire in us to "right" that wrong or make it just, return it to the status quo.

Kant's pure retribution is very interesting but I believe that Hegel offers a more powerful argument for the goal of laws, which is to balance the scale, or right the wrong, in essence bring about justice, which is oddly quite intuitive for almost all people. Hegel argues that a crime is a moral wrong that negates the moral order of a society and punishment is required to redress that negation. Kant's view of justice is necessiated by the idea of punishment to uphold the cosmic and metaphysical order, accordingly his view of justice is an "eye for an eye" retribution. Hegel is much more akin to question that method and offer a more proportional idea of justice, without delineating exactly what justice would demand in a particular situation.

What justice is, changes from time to time and place to place. Hammurabi's code was a mirror image law, eye for an eye. Islamic nations punish thieves by chopping off their hand, to the western world this would seem to go beyond the realm of what justice would be. Essentially there is no overarching generally understood idea of what justice is. What we do understand is that no wrong can go unattended, something must be done or happen. Our society in America, includes procedural justice as equally important if not more important than substantive justice, meaning the ends cannot justify the means. The means must be controlled and formal. If procedures cannot ensure justice than we are to discard the substantive justice in the particular case and move on. The abstract rights of the many triumph over the need for justice in a particular case. Isn't it worse that a rapist or murderer walks away from commiting such an act? The overwhelming focus on our society on privacy and absurd individualism is the heart of the problem. I do think we have a right to privacy but that right can and should be inconvienced in order that justice can be done. Justice simply means that the individual who committed a wrong is found and punished (which can include reforming). The particulars of the punishment are utterly dependant on the crime and manner of wrong. Thats it for now. comments?

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