Structure & Strangeness


: Conflicted Justice :
: an essay exploring the implications of coexisting two forms of justice

: Justice is a prickly term to understand and its usage can greatly depend on both
: the audience and the context. As a common example, justice is what national
: figures claim to want when they appeal to the public for support in punishing
: someone or something. Taken at surface value, justice is the desired retribution
: for some perceived wrong-doing. For example, for the friends and family of those
: who lost loved-ones in the 1995 Oklahoma City bombing [1], Timothy McVeigh's
: death sentence and subsequent execution was hailed as justice. In a complementary
: sense, when an individual or group is suppressed, justice is said to be missing. For
: the Civil Rights movement, social justice for blacks is said to have been absent prior
: to the passage of the 1964 Civil Rights Act [2]. These forms of justice are what I
: will term "legal justice," which is to say that the retribution is derived through a
: society/government mediated legal system. Generally, legal justice is societally both
: accepted and endorsed. Legal justice is what a rational society desires for wrong-
: doing, because there is an assumed objectivity and common morality to it. When
: legal justice is sweeping enough to push society toward greater individual equality,
: it's called social justice.

: There is, however, another form of justice, which is a hold-over from pre-historic
: times when justice was not meted out by complicated societal legal systems. This
: kind of justice, what I term "personal justice," in modern societies is not always
: either accepted or endorsed either legally or societally. Yet personal justice is an
: equally important way of balancing a wrong-doing, being both more swift and more
: accessible.

: In this piece, I will attempt to explore the fundamental concept of "justice" as found
: and applied in our wonderfully complex western society. I'll explore how personal
: justice is both distinct and yet related to the more familiar legal justice, examine the
: inherent paradox of legal justice, touch on the concept of social justice, and briefly
: explore how justice is evolving in a world defined by difference and multiculturalism.

: Disecting Justice

: Justice is what we call retribution for a perceived wrong-doing, and as a result it
: requires a moral framework from which to judge "right" from "wrong." The American
: Heritage Dictionary defines justice as the quality of fairness, the principle of moral
: rightness and the administration of law [3]. The first two definitions are subtly linked
: as before one can judge fairness, one needs a framework which distinguishes
: excessiveness from rationality. Almost by definition, such a framework is a morality
: as it assigns a "rightness" or "wrongness" to actions - i.e. that excessiveness is "wrong"
: and moderation is "right." When taken in the context of the third definition, the
: administration of law becomes the enforcement of this morality, however it is put
: into place. But that's exactly what a legal system is - a societally constructed moral
: framework of right vs. wrong, complete with a set of consequences for convicted wrong-
: doers. Unlike most moralities, legal systems are obsessively recorded in order to lend
: the weight of precedence to the moral (legal) judgments. Precedent, in this case, plays
: the role of the band-aid fixing up a poorly designed and inconsistent moral framework.

: One could say that justice is the imposition of fairness upon a previously unfair
: situation, meaning that all sides are made more equally enabled or disabled. As a
: working definition for this essay, however, lets simply say that injustice is an un-
: balancing of fairness, a perceived wrong-doing; justice is then the necessary retribution
: to restore balance for that wrong-doing. With this now slightly refined understanding of
: justice, here are five questions to consider as we wind our way through the interaction
: of and distinction between legal and personal justice. What is justice where

: 1. a mother (or father), desperate from years of struggling economically and
: emotionally to live and raise three young children suddenly shoots them all dead,
: 2. a people's property is bought through Eminent Domain to make way for a new
: airport runway,
: 3. two drunk college students sleep together, and one wakes up the next morning
: feeling taken advantage of,
: 4. the gay son who's father will no longer speak to him because, to the dad, the son's
: sexual orientation is more important to him than the father-son relationship,
: 5. a devout muslim who's beliefs, in a chatroom, are aggressively attacked and belittled

: Understanding Personal Justice

: Personal justice, unlike the legal form, is not available at the societal level; rather, it
: is the retribution we as individuals can obtain under our own power, without the help of
: a societal mechanism. Thus personal justice is always available to each one of us,
: although circumstances may make it an unappealing choice. In this regard, personal
: justice is what you get when you lash out at a person who is harassing you, and is
: what Greenpeacers seek when they delay a national missile defense test. While legal
: justice is intended to be objective, personal justice derives its power from being purely,
: but perhaps unknowingly, subjective.

: At the individual level, personal justice accessible and immediately gratifying, and thus
: very pervasive. Legal justice, having a long tradition and complex methodology, is
: relatively inaccessible to most individuals, and the satisfaction rewarded is distant and
: hard-won. Personal justice is fast and cheap, while legal justice is laborious and
: expensive [4].

: Let's examine a situation using this concept of personal justice. An unarmed veteran
: policewoman is killed in her house by a man who's brother she killed in a prison-
: break several years prior. Blinded by rage, the policewoman's son's only desire is
: retribution for the killer's unjust actions. His options are either to see this man put
: away for life (legal justice), or to exact revenge (a specialized form of personal justice)
: by killing/brutalizing him. Most would seek legal justice for such a seemingly open-
: and-shut situation. In a less rational (and legally constrained) society, however, the
: revenge-murder is the expected form of personal justice, and has become a stereotype
: of primitive honor. However, if the legal case begins to fall apart making legal justice
: less attainable, for the son, personal justice becomes the only option for balancing
: the injustice of the mother's murder. Likely, the son will see the legal system's failure
: as an additional injustice, and he may seek justice on his own terms. Because personal
: justice is inherently subjective, it can lead to circularities like this situation - the killer
: himself sought personal justice for a wrong-doing; by achieving it, the debt of injustice
: is not eliminated, but merely passed to the son. Continued personal justice continues
: to pass the debt of injustice.

: But how is the concept of personal justice useful? By drawing a distinction between
: the justice individuals can achieve within their own power versus the justice achievable
: through the law allows us to examine the tension between the two, and explore what
: happens in ambiguous situations like the five questions described at the beginning
: of this essay.

: All in the Family (of Justice)

: Legal justice, however, doesn't spring fully formed from a society's collective forehead.
: Instead, it has to evolve over time from personal justice just as culture evolves from
: personal habit and social movements. Personal justice, then, is the mother of legal
: justice. At the smallest social level, it is both difficult and unlikely that a small group
: of people can have either legal justice or a society - personal justice remains the
: dominant form of retribution. Imagine you're a member of a street gang - one of
: your fellows spreads libelous rumors about you, undercutting your reputation and
: chances of climbing the hierarchy. What higher authority might you appeal to for
: justice? Most likely there is none, and you must take it into your own hands to balance
: the wrong-doing. Gangs themselves can be seen as social entities, and the interactions
: between them become mediated by personal justice as well. So long as there is not
: a higher authority, which the clashing parties can appeal to, personal justice is the
: only way toward restoring the social balance.

: The larger and more continuous a social group becomes, the more likely they will
: agree to a framework of acceptable and unacceptable behavior - a primitive system
: of legal justice. For instance, when an organization becomes large enough, it usually
: creates bylaws and a charter so that all members can share a common understanding
: of the group's purpose. The larger the group, the tighter and less personal the system;
: in small organizations, splinter groups cause a drain on the system's strength, and if
: persuasive enough, and cause the legal system to be replaced (revolution). Small groups
: can get away with having legal justice rest in the communal understanding, but larger
: entities like city-states necessitate a written legal system in order to remain consistent.
: Scaling up, city-states will coalesce to form nations, and their disparate legal systems
: merge and become correspondingly more complex [5].

: The connection between personal justice and legal justice could be boiled down to a
: simple observation made by the Legal Realist movement c. 1900-1940 [6]. This
: movement observed that judges, like the rest of us, put their pants on one leg at a
: time, meaning that they are subjective participants in the legal system, thus allowing
: their concept of personal justice to affect the future definition of legal justice.

: Part 2: Legal Justice, Personal Injustice, and fairness in an unfair world


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© Aaron Clauset

updated 8.26.01