"What about TRUTH? What about JUSTICE? What about RIGHT? What about WRONG? What about..."
This one got knocked loose by one of the questions at Friday's interview.
What is the goal/purpose/role of law?
This one has a lot of answers. I've posted a couple here in this LJ in the past. And there are the common answers as well: the law is about truth, or fairness, or justice, or right and wrong, or good and evil, or maintaining order, or punishment, or holding to some sort of ideal.
My near-answer(*) to the question of why I want to be a prosecutor when most of my work has been on the defensive side got me to thinking: none of these is right. The law, at its heart, is about none of these: not truth, not justice, not right and wrong, and certainly not about money or damages or punishment. Hence the title.
Were "truth" to be the goal of the law, the law would collapse. Although the question of an absolute truth is one that philosophers still wrangle about, there can be no doubt that each of us perceives "truth" from an individual, unique standpoint - a truth that may or may not be independant of "what really happened" or any universal truth. Very few of us are capable of perceiving "truth" from the eye of another, and still fewer can do so without conscious effort. Were the law merely a search for "truth", it would break down when what one person sees as true is markedly different from the perception of another. This might be different if more people were able to shunt their own prejudices and preconceptions aside and be able to see from the eyes of others, but, speaking from experience, this is a difficult skill, one that often reveals one's own self to be a poor shadow of whom one believes oneself to be.
Now, one could argue that one of the goals of the law is the deterimination of the truth, so that the law may then act upon it. Ideally, this might be the case. However, the reality of the law is that the truth, in the sense of absolutely determining what happened, or what the circumstances were, is clouded by other considerations, time, money, efficiency, and justice being among the most notable. Politics, public opinion, and social considerations also play a hand. There is a reason that the courts are suppossed to defer to scientific determinations over legal ones - the law must determine the "truth" of a situation quickly, and does not have the time, money, or impetus to conduct a thorough investigation of scientific situations. I have written extensively on this paradox elsewhere, and will not belabour it here.
Thus, the law seeks "truth" only in regards to other goals, not in and of itself.
"Justice" is a similarly poor purpose for the law. Although justice in the abstract is fairly easy, when it is applied to any real-life, complicated situation, it becomes extraordinarily grey. Take, for example, the death penalty. About a year and a half ago, there was a major controversy in Oregon over the means by which the death penalty was to be applied. The dose of barbituates given to the executee was shown to be insufficient - the ones being executed were waking up halfway through the process, causing their final minutes to be ones of excruciating pain. On appeal, advocates for the convictees argued that it would be "just" to adjust the dosage of the drugs so that the executees did not suffer so, while victims' rights advocates argued that, as felons, it would not be "just" to permit them to exit this mortal coil in a painless manner. Whether or not one or the other was correct in the determination of what was "just" is largely a matter of the point of view of the determiner, it seems.
Worse, the definition of justice can vary based upon factors outside what the courts - and the legal system in general - are easily able to determine. IS it just to punish someone who commits a crime in order to feed his family? What about if that same crime was done to feed a drug fix, or to fund further crimes? Determining why someone commits a crime is a task that is beyond the ken of the courts, for it is shrouded in the murk of self-deception, first causes, and situational awareness and empathy. The court can do the best job it can, and indeed, it seems they try, but such a system, based on nonempirical factors, is doomed to create injustice.
Thus, while "justice" may be a goal of the legal system, it is probably better described as a meterstick by which the law measures its decisions as best it can, regardless of the shakiness of using such a meterstick. That the decisions of what is just and not create such contention is actually an indication of a dynamic, vital, and adaptive system. (I think there's another line of thought here...)
As for "Right and Wrong" the law really cannot aspire towards any measure of right or wrong, except insofaras such exists within the framework of "justice" explained above. The law can enforce right and wrong, certainly, but it cannot effectively define them and then enforce them, except under extremely specific circumstances.
Take Prohibition as an example. 3/4 of the states felt that the consumption and trafficking of alcoholic beverages was "wrong", and a Constitutional Amendment was enacted in an attempt to enforce this perception of "wrong" onto the population at large. Yet there was not a significant decrease in alcohol consumption during Prohibition. Which leads to the conclusion that Congress, the States, and the Courts could not create a definition of "right" or "wrong". Only society could.
Instead, the law follows the social definitions of right and wrong, at least in some areas.
This is not to say that the law cannot, when the need is great enough, and there is a strong and lasting support for a particular value, override the right/wrong parameters(**) of a significant portion of the population when those conflict with the desired value. The best example of this is certainly the civil rights laws. A significant portion of the population of the U.S. believed that it was right, or at least not wrong, to hold African-Americans in second- or third-class status. Segregated schools, poll taxes, Jim Crow codes, gerrymandering, you name it, they believed it was okay to do so. However, another portion of the population saw this as wrong, and (most importantly) they were willing to expend the considerable effort to enforce their view of right and wrong onto the segregationalists. The amount of effort that was necessary to do this was tremendous, but in the end, it has been at least partially successful.
Other efforts to do the same have been far less successful: In spite of apparantly strong support, there is little official action in favor of making English the national or official language. Many people feel strongly about this, but very few are willing to put forth the massive effort to overcome both the apathy of others AND the resistance of those who feel that such is "wrong". Ditto for the opposition to gay marriage: although there is always a lot of doomnoise from the RR about the issue, the amount of actual support for a Federal Marriage Amendment is rather small - far small than would be needed in order for such an amendment to even be brought to the floor of Congress, much less passed and submitted to the states for ratification. Simply put: people don't care enough to put forth the massive effort that would be needed to enforce that particular standard of right and wrong onto those who don't follow that standard, and this isn't a crisis that would prompt stampede action.
Thus, the law can create a new definition of right and wrong that overrides the right/wrong matrices of part of the population, but only if there is strong, lasting, and widespread support for such an undertaking. Without that significant, popular support, the law can only follow the existing right-wrong criteria of society.
So, if we eliminate the creation, definition, or enforcement of truth, justice, right, and wrong as goals/purposes/functions of the law, what is left?
I believe that the answer arises out of taking the right-wrong discussion one step further. Although there is a general social matrix of right and wrong, this is only a general standard. By its very nature, a general standard cannot possibly account for all specific situations that arise within the matrix. And since the right-wrong matrix is going to involve conflicting priorities, there must be a vehicle by which these conflicts can be resolved. Furthermore, the unraveling of which priorities control - or even how they apply - is not a simple matter.
I believe that the law and all of its machinery act as lubricant for society. The function of law is to provide a vehicle by which contesting parties can resolve their disputes and the conflicts created by specific situations without resorting to methods that are, by their very nature, counterproductive to any sort of coexistance, much less to a functioning, healthy society. Without the engines of law, the only method for the resolution of disputes and conflicts becomes main force - whether physical, economic, or otherwise - and in that sort of sitaution, it is the person who is stronger at that moment who will always win, not the person who, by any standard that includes the long-term good of society at large, ought to win.
Without law, the right-wrong matrix of society becomes the right-wrong matrix of the most powerful individuals within it, a matrix that will be almost completely controlled by the interests of those who hold the exaulted positions - and later, their children, regardless of whether those children would have the same qualities that put the most powerful into that position.
Granted, the law still creates a framework in which the right/wrong matrix becomes that of the most powerful individuals within it. However, just as there are many ways to define "right" and "wrong" or "justice" (or "truth"), there are many ways to define "most powerful". In the context of the law, "most powerful" is defined by the ability of an individual to convince enough of the people that their right-wrong matrix is sufficiently in line with their own to trust them with creating or altering the right-wrong matrix of society at large. It is not a perfect system - it is vulnerable to abuse and deceit, but only over the short term. Over the longer term, the will of the people does eventually prevail. It just takes a while, that's all.
The changes in the laws I described above fall within this concept too. Prohibition did nothing to improve the law's ability to resolve these conflicts - instead it created more. Banning gay marriage would do the exact same thing, just as criminalizing "sodomy" did until Lawrence v. Texas.
Outside of this function of "lubrication", there is very little for the law to do, at least in a society such as ours. It can be used in many ways, but all fall into the basic concept of greasing the often-sticky gears of society at large.
(*) The "near-answer" was, "[prosecution and defense] are two sides of the same coin, as they work towards the same goal."
(**) Incidentally, I made up the term "right-wrong matrix", as I do not know the actual sociological or socioethical term for the concept. The matrix is the fluid set of standards by which society judges individual or collected behaviours and actions in terms of their rightness and wrongness.
Additional kudos to any who get the (more-than-slightly altered) reference.
What is the goal/purpose/role of law?
This one has a lot of answers. I've posted a couple here in this LJ in the past. And there are the common answers as well: the law is about truth, or fairness, or justice, or right and wrong, or good and evil, or maintaining order, or punishment, or holding to some sort of ideal.
My near-answer(*) to the question of why I want to be a prosecutor when most of my work has been on the defensive side got me to thinking: none of these is right. The law, at its heart, is about none of these: not truth, not justice, not right and wrong, and certainly not about money or damages or punishment. Hence the title.
Were "truth" to be the goal of the law, the law would collapse. Although the question of an absolute truth is one that philosophers still wrangle about, there can be no doubt that each of us perceives "truth" from an individual, unique standpoint - a truth that may or may not be independant of "what really happened" or any universal truth. Very few of us are capable of perceiving "truth" from the eye of another, and still fewer can do so without conscious effort. Were the law merely a search for "truth", it would break down when what one person sees as true is markedly different from the perception of another. This might be different if more people were able to shunt their own prejudices and preconceptions aside and be able to see from the eyes of others, but, speaking from experience, this is a difficult skill, one that often reveals one's own self to be a poor shadow of whom one believes oneself to be.
Now, one could argue that one of the goals of the law is the deterimination of the truth, so that the law may then act upon it. Ideally, this might be the case. However, the reality of the law is that the truth, in the sense of absolutely determining what happened, or what the circumstances were, is clouded by other considerations, time, money, efficiency, and justice being among the most notable. Politics, public opinion, and social considerations also play a hand. There is a reason that the courts are suppossed to defer to scientific determinations over legal ones - the law must determine the "truth" of a situation quickly, and does not have the time, money, or impetus to conduct a thorough investigation of scientific situations. I have written extensively on this paradox elsewhere, and will not belabour it here.
Thus, the law seeks "truth" only in regards to other goals, not in and of itself.
"Justice" is a similarly poor purpose for the law. Although justice in the abstract is fairly easy, when it is applied to any real-life, complicated situation, it becomes extraordinarily grey. Take, for example, the death penalty. About a year and a half ago, there was a major controversy in Oregon over the means by which the death penalty was to be applied. The dose of barbituates given to the executee was shown to be insufficient - the ones being executed were waking up halfway through the process, causing their final minutes to be ones of excruciating pain. On appeal, advocates for the convictees argued that it would be "just" to adjust the dosage of the drugs so that the executees did not suffer so, while victims' rights advocates argued that, as felons, it would not be "just" to permit them to exit this mortal coil in a painless manner. Whether or not one or the other was correct in the determination of what was "just" is largely a matter of the point of view of the determiner, it seems.
Worse, the definition of justice can vary based upon factors outside what the courts - and the legal system in general - are easily able to determine. IS it just to punish someone who commits a crime in order to feed his family? What about if that same crime was done to feed a drug fix, or to fund further crimes? Determining why someone commits a crime is a task that is beyond the ken of the courts, for it is shrouded in the murk of self-deception, first causes, and situational awareness and empathy. The court can do the best job it can, and indeed, it seems they try, but such a system, based on nonempirical factors, is doomed to create injustice.
Thus, while "justice" may be a goal of the legal system, it is probably better described as a meterstick by which the law measures its decisions as best it can, regardless of the shakiness of using such a meterstick. That the decisions of what is just and not create such contention is actually an indication of a dynamic, vital, and adaptive system. (I think there's another line of thought here...)
As for "Right and Wrong" the law really cannot aspire towards any measure of right or wrong, except insofaras such exists within the framework of "justice" explained above. The law can enforce right and wrong, certainly, but it cannot effectively define them and then enforce them, except under extremely specific circumstances.
Take Prohibition as an example. 3/4 of the states felt that the consumption and trafficking of alcoholic beverages was "wrong", and a Constitutional Amendment was enacted in an attempt to enforce this perception of "wrong" onto the population at large. Yet there was not a significant decrease in alcohol consumption during Prohibition. Which leads to the conclusion that Congress, the States, and the Courts could not create a definition of "right" or "wrong". Only society could.
Instead, the law follows the social definitions of right and wrong, at least in some areas.
This is not to say that the law cannot, when the need is great enough, and there is a strong and lasting support for a particular value, override the right/wrong parameters(**) of a significant portion of the population when those conflict with the desired value. The best example of this is certainly the civil rights laws. A significant portion of the population of the U.S. believed that it was right, or at least not wrong, to hold African-Americans in second- or third-class status. Segregated schools, poll taxes, Jim Crow codes, gerrymandering, you name it, they believed it was okay to do so. However, another portion of the population saw this as wrong, and (most importantly) they were willing to expend the considerable effort to enforce their view of right and wrong onto the segregationalists. The amount of effort that was necessary to do this was tremendous, but in the end, it has been at least partially successful.
Other efforts to do the same have been far less successful: In spite of apparantly strong support, there is little official action in favor of making English the national or official language. Many people feel strongly about this, but very few are willing to put forth the massive effort to overcome both the apathy of others AND the resistance of those who feel that such is "wrong". Ditto for the opposition to gay marriage: although there is always a lot of doomnoise from the RR about the issue, the amount of actual support for a Federal Marriage Amendment is rather small - far small than would be needed in order for such an amendment to even be brought to the floor of Congress, much less passed and submitted to the states for ratification. Simply put: people don't care enough to put forth the massive effort that would be needed to enforce that particular standard of right and wrong onto those who don't follow that standard, and this isn't a crisis that would prompt stampede action.
Thus, the law can create a new definition of right and wrong that overrides the right/wrong matrices of part of the population, but only if there is strong, lasting, and widespread support for such an undertaking. Without that significant, popular support, the law can only follow the existing right-wrong criteria of society.
So, if we eliminate the creation, definition, or enforcement of truth, justice, right, and wrong as goals/purposes/functions of the law, what is left?
I believe that the answer arises out of taking the right-wrong discussion one step further. Although there is a general social matrix of right and wrong, this is only a general standard. By its very nature, a general standard cannot possibly account for all specific situations that arise within the matrix. And since the right-wrong matrix is going to involve conflicting priorities, there must be a vehicle by which these conflicts can be resolved. Furthermore, the unraveling of which priorities control - or even how they apply - is not a simple matter.
I believe that the law and all of its machinery act as lubricant for society. The function of law is to provide a vehicle by which contesting parties can resolve their disputes and the conflicts created by specific situations without resorting to methods that are, by their very nature, counterproductive to any sort of coexistance, much less to a functioning, healthy society. Without the engines of law, the only method for the resolution of disputes and conflicts becomes main force - whether physical, economic, or otherwise - and in that sort of sitaution, it is the person who is stronger at that moment who will always win, not the person who, by any standard that includes the long-term good of society at large, ought to win.
Without law, the right-wrong matrix of society becomes the right-wrong matrix of the most powerful individuals within it, a matrix that will be almost completely controlled by the interests of those who hold the exaulted positions - and later, their children, regardless of whether those children would have the same qualities that put the most powerful into that position.
Granted, the law still creates a framework in which the right/wrong matrix becomes that of the most powerful individuals within it. However, just as there are many ways to define "right" and "wrong" or "justice" (or "truth"), there are many ways to define "most powerful". In the context of the law, "most powerful" is defined by the ability of an individual to convince enough of the people that their right-wrong matrix is sufficiently in line with their own to trust them with creating or altering the right-wrong matrix of society at large. It is not a perfect system - it is vulnerable to abuse and deceit, but only over the short term. Over the longer term, the will of the people does eventually prevail. It just takes a while, that's all.
The changes in the laws I described above fall within this concept too. Prohibition did nothing to improve the law's ability to resolve these conflicts - instead it created more. Banning gay marriage would do the exact same thing, just as criminalizing "sodomy" did until Lawrence v. Texas.
Outside of this function of "lubrication", there is very little for the law to do, at least in a society such as ours. It can be used in many ways, but all fall into the basic concept of greasing the often-sticky gears of society at large.
(*) The "near-answer" was, "[prosecution and defense] are two sides of the same coin, as they work towards the same goal."
(**) Incidentally, I made up the term "right-wrong matrix", as I do not know the actual sociological or socioethical term for the concept. The matrix is the fluid set of standards by which society judges individual or collected behaviours and actions in terms of their rightness and wrongness.
Additional kudos to any who get the (more-than-slightly altered) reference.