erratio | Fairness versus justice, and how should justice by administered

This is an email from a mailing list I'm on

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In my earlier discussion I was referring to the idea that certain individuals have inherent qualities that make them superior at certain things. We can take the difference between Greyhounds and Dachshunds in running for example. In a quarter mile sprint, in a thousand races, if all other factors are equal, the Greyhound will win, one thousand times. This isn't fair, but it is just. On the other hand, if we allow the Dachshund a different starting point, one that allows it an equal chance of winning given an equal effort, this is fair, but not just. In dog racing it is clear that the better course of action is to allow all dogs the same starting point, and see which is faster, but in human society we have similar discrepancies in ability that affect our economic and sociological standing. If we follow the just but not fair model, we end up with a permanent, disenfranchised underclass, if we follow the fair but not just model, we reward incompetence, punish talent and demotivate all effort to succeed. This leaves us with the necessity of a compromise, and it is the degree and direction of this compromise that makes up much of the political difference among people.
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My own thoughts? Prior to this I believed that justice is primarily concerned with punishing wrongs and making sure they don't re-occur, while fair is more about what should happen, and how to fix the problems created by the wrong. A simple example of this would run like so: in medieval times it was customary to punish thievery by cutting the thief's right hand off. This would ensure a) that the thief was punished for his crime b) he wouldn't be able to re-offend (unless he was left-handed :p). Fairness would only require that the stolen goods be returned to the original owners at no cost to them.

The model described by the person in the email though seems to fit society's norms much more closely. Enough that I wonder whether fairness is a good principle to live one's life by. Then again, the fairness described only takes into account individual fairness, not global fairness.
It might be fair for any child to become whatever they want to be provided that they work hard at it, but its not fair to soldiers if they die because their general is an incompetent who only became a general because it wasn't fair to bar him from becoming one when he worked so hard for it. As soon as you introduce responsibility for other people into the system individual fairness no longer becomes the issue. I guess the idea I'm reaching for here is closest to Utilitarianism
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Justice on the other hand.. now there's an interesting concept, and one which I can rant about for many many words. I disagree that a just society would create a permanent underclass at least given the fair structures we already have in place, such as mandatory schooling. He assumes that the underclass would have no persuasive/intelligent people born to it, that the upperclass would never be interested in 'slumming it', that no one in the underclass would be willing to put in the work to pay their way into uni... the assumptions are infinite. He seems to assume that a just but not fair system would evolve into a caste system where the rich are the rich and the poor are the poor and never the twain shall meet. This.. doesn't seem right.. I don't see how our current society could devolve into a feudal system without some serious dictatorship happening.

And now for the other half of my justice rant, which I was too lazy to type out until now.. A couple of months ago I saw the movie Hard Candy with a friend (kept nameless because I'm about to pan his opinions). I won't go into plot details but the main issue we were discussing afterwards was a)who has the right to punish crime, and b)what should the punishment be for serious crimes such as rape.
My friend held that all crime should be referred to proper authorities and that people shouldn't take the law into their own hands. To punish bad crimes he felt that it's better to keep criminals alive and make them suffer so that they will appreciate what they've done.
Needless to say, I disagreed on all these points :p Firstly, the proper authorities are just as fallible as the next person, the only difference is that they have more experience. It makes their judgements more consistent but not necessarily wiser. It's like how it has been argued that the reason we study ethics at uni isn't to teach us how to be moral (because people have an inbuilt moral compass or lack thereof already) but to make us aware of situations that may come up so that we can make a more considered decision rather than an irrational decision in the heat of the moment.
So I hold that it can be ok for individuals to take the law into their own hands since their morals are not any better or worse than an authority's, but only in extreme circumstances and when other avenues have already been pursued.
Finally, the punishment for serious crimes. My view on this is simple. If you're going to remove yourself from the human race by doing something that everyone can agree is monstrous (eg rape/pedophilia) then you deserve to be treated as the vermin you are, and to be exterminated. The concept of revenge is meaningless to me because it simply diverts resources away from people who could make positive use of them. Why feed the serial rapist when you could be feeding a child in Africa? And really, why should we care if they appreciate what they've done? It won't make their crime go away.
Add to that, that punishing the criminal as harshly as their crime deserves (since the argument was that they should be kept alive because death is too good for them) would require someone else to be monstrous to be able to order it done and then carry it out. And torture is a pretty bad crime in itself, doesn't that mean that they should be locked away and punished too? Except that to be lock them away and punish them requires the very skills that required those people to be locked away in the first place. And so on and so forth (I love recursive arguments :p). So really you're doing no one any favours by keeping the criminal around for revenge purposes, in the end you're only degrading yourself and wasting your time for someone who you've already decided is so bad that even death isn't a suitable punishment.

Ok, enough rant.

Flat | Top-Level Comments Only

I agree with a lot of what you say, but as far as extermination goes, the problems that come up with it are 1) is it worth exterminating the occasional innocent (wrongly convicted, and it has happened) and 2) it's apparently more expensive overall to kill than to keep, so that money for the child in Africa would presumably be increased by jailing rather than exterminating.

Sorry I don't have the stats handy for that last statement, but thought you might want to check it out if you decide to take the rant prime time. :)

Ah, material to google!

I'm not sure I would want to keep up the rantage on this subject though. Justice is one of those icky subjects that just gets murkier the more you move away from moral imperatives and more into the realm of real life.

Very very true. I know I used to be all death penalty gung-ho, etc. etc., then learned it wasn't quite so cut and dry. Thought you had a very well-stated rant, though, well-stated so that it didn't even feel like a rant.

I agree that 'extermination' is a valid (and desirable) punishment for certain types of offenders, but I also think that it is important to more strictly classify which ones. If you are going to execute people for rape and pedophilia, then the number of murders is only going to increase in our society. A person who would have previously only raped or molested somebody is now going to kill their victim as well: there's less chance of getting caught, and the penalty is the same. England, incidentally, used to have this problem at one stage when they were executing thieves.

In response to the previous commenter, I don't think that executing an innocent person is a great deal worse than imprisoning them for twenty years.

Well if the alternative is death or [some horrible punishment worse than death] the result would be the same either way I expect.

You make a good point though that a bad enough punishment for a crime that doesn't include killing would only encourage killing. Now that I think it about it I can see that this is the logic. the current justice system appears to work with

A possible way around this would be to bring back medieval style execution methods, where a relatively less monstrous crime leads to a quick death while a worse one would lead to a painful drawn-out death, but this also suffers from the problem that meting out such punishment causes the punisher to become less human.
Or you could combine the methods and give the lesser ones death and the worse ones the fate worse than death that my friend envisioned. Again, not really feasible imo.
Or you could only give out the death penalty in cases that included killing already, which brings us to the current US justice system I believe? Although I still believe the punishments for rape and the like are far too light, and it implies that murdering someone with intent, even if it is done relatively humanely, is somehow worse than abuse given that one results in a significant portion of one's life gone (somewhere between 20 years to a life sentence I believe?) and the other often leads to somewhere between 5-20, practically a slap on the wrist when you compare the two.

So what kind of crimes would warrant capital punishment in your opinion?

I *think* that's the present US system (although technicalities differ from state to state and most states no longer implement it), but I'm not sure. It makes sense to me, but only so long as the crime already involved murder. As to punishments for other crimes, it's hard to say. I think that we need to decide whether the incarceration system is preventative or punitive. If we're simply trying to ensure that they don't do it again, well there are probably more cost-effective ways of doing that (without the amputation of the offending appendage!). Also, if we're simply trying to *punish* them, aren't there better ways of doing that as well? Prison, for many of its inmates, is not much of a punishment.

The biggest problem with the prison system (in my opinion) is that it's the best place to make criminals. America imprisons more people than any other country in the world, and one of these days most of those people are going to be released. By that time they'll know exactly what they did wrong, they'll have their heads full of all sorts of ideas about how to avoid getting caught the second (or third, etc) time around, a real bone to pick with the society that had them locked away, and viable 'business' contacts to help them out. That's some system! Most people don't learn that much that quickly in university.

"I don't think that executing an innocent person is a great deal worse than imprisoning them for twenty years."

I think if I were the innocent in this case, I would want to be the one casting the vote on which is preferable.

That's a good point, and I hear that.
Unfortunately, however, how can you be certain that the person pleading their innocence is the genuine article? Everybody pleads their innocence, and most of them probably believe themselves too.

I don't doubt that most people on death row are likely guilty, but even one innocent person executed is too many. It's like arguing that civilians killed in war are a small price to pay for the greater goal.

The Gov. of Illinois put a halt to all executions after they discovered that a few recent ones turned out to be wrongly convicted, proven by evidence found afterward. Not only does that affect the innocent - which is reason enough to consider abolishing the death penalty - but it also affects the person's family and thus the rest of us. It's begging for crippling lawsuits at least; at worst, it creates an irreparable distrust for our form of justice and for the government in general.

Again, I hear where you're coming from - I simply cannot think of a better method of dealing with the problem. It comes back to the whole preventative vs. punitive issue. If it's punitive then I agree with you completely. How does killing one person make up for the fact that they had murdered another? (Note the difference in terminology; I reveal my bias) If the motivation is preventative, however, then I think it's a great idea. Sure, some people may still murder others, but significantly fewer will do so if they know that they are going to get killed for doing it in return. For that to work, however, it's necessary to follow through - even if you run the risk of killing one innocent for every hundred guilty. I don't think those odds are so bad, you'll excuse me for saying so.

And as for war - while I'm not trying to move this thread away from its topic, the killing of civilians in a war is a small price to pay for the greater goal. That's not to say that it's not terrible (war, itself, is despicable), but there are worse things that may occur to the world if you lose. Imagine what the world may have been like had Hitler triumphed over the allied nations. Is the prevention of that world not worth dying for? Is the reduction in murdered innocents not worth the judge-ordained death of one every so often? Still fewer people dying, whichever way you look at it.

Yeah, I hear where you're coming from too. And the preventative angle would be more persuasive if there was solid evidence that it worked, but as far as I know, it doesn't seem to be much of a deterrent. Not that life in prison is any better a deterrent, but at least then we're not the ones putting an innocent to death. We may not be able to prevent innocent deaths in war (and absolutely, they're an awful but inevitable part of war), but at least we could prevent them in our courts/jails.

By the way, I appreciate the earnest and well-thought out discussion. You make good points.

I'm more interested in what we should do with the African child who is a serial rapist. Feed him or kill him? Or kill him with food?

Fairness versus justice, and how should justice by administered

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