Posts Tagged ‘justice system’

Fair’s fair and just is right, but justice systems are to do harm to a select few

June 20, 2020

This started out as an explanation of the difference in usage between just and fair, but has ended up as a journey from fair to just to justness to justice and thence to justice systems.

Just and fair are often conflated. But justness and fairness are different things and justice is something else again. The qualities of justness and fairness give rise to being just and fair respectively, but the corresponding action deriving from the quality of justice is doing justice.

  • fair/unfair, from fairness/unfairness,
  • just/unjust, from justness/injustice1,
  • justice/injustice2

are all quite distinct and different. The antonym for justness I take to be injustice1, which is not quite the same thing as the opposite of justice (injustice2).

What both fair and just have in common is that they cannot exist except as reactions to the prior conceptions of unjust and unfair. These must come first. .Just and fair both then represent, but separately, states of balance in human interactions. The abstract quality of being fair is fairness and that of being just is justness. Justice is, however, something else and not necessarily fair or just. But justice too follows from a conception of injustice2 which must come first.

A justice system is something else again. 


A just universe?

In the physical universe, the concepts of just and fair are undefined and have no meaning. The natural laws are neither fair nor just; they merely are. It is human cognition together with human interactions which give rise to the need for these concepts to exist. In the physical world, the closest analogy to the concepts of just and fair are equilibrium and balance. The universe came into being, (whether by accident or by design), following an initiating impulse which created the Great Imbalance. All events since then are in pursuit of balance; of seeking a state of equilibrium. All change is a result of some imbalance. Once equilibrium is achieved nothing happens. Nothing can happen. All of physics and chemistry and biology are about changes brought about by non-equilibrium states followed by events which are always in the pursuit of balance. We derive the natural laws from observations of change around us. They are all about events caused by imbalances, which seek to reduce the causing imbalance. Without imbalance there would be no motion, no vibration, no radiation and no change of any kind. They all cease with equilibrium. Even the very existence of matter is due to disturbances (imbalances) in fields. All existence is a chain of succeeding imbalances, a transience. All life is transient. Change pursuant to one imbalance leads to further imbalances, which lead to further changes, and so on ad infinitum.  There is no certainty that the chain of changes will, or must, converge. Attaining a final, universal equilibrium may not happen very quickly (and possibly may never happen). Whether time emerges from change, or time causes change, the flow of time is itself a manifestation of some, as yet unknown, imbalance. The universe – while it exists – is in a “permanently” transient state. All science is about understanding the state of the universe and its patterns of change, while human engineering and technology are about harnessing the transients as the natural forces pursue equilibrium. Change is impossible without imbalance. If, and when, all the imbalances are removed, even atoms will cease to vibrate and the universe will come to an end. All would be in equilibrium; motionless; unchanging; timeless. It would be the ultimate stasis.

The universe just is, but just it is not.

Fair/Fairness

Fair is meaningless without a conception of unfair. Any definition of fair must first go through defining what it is not. Fairness is about a qualitative balance assessed between positions along the benefit – harm value scale, as perceived by an individual. Fairness is about the balance and not about the level of harm or the position along the value scale. Strict equivalence is not a requirement. However while fair describes a balance anywhere along the scale, unfair is always accompanied by a greater level of perceived harm on one side of the imbalance.

It is nearly always about people. It is always about balance though a comparison with a standard or norm may be implied. It is thought that the concept of fairness may even be hard-wired into our brains. (Fairness and equality are sometimes interchanged but they are also quite different things and equal is not necessarily just or fair). For an individual, the assessment of fairness can often seem to emanate from “gut” emotions. It is, however, a composite cognitive assessment; an application of reason, even if sometimes made to some extent in the sub-conscious. The assessment is along a harm-benefit value scale which is itself a composite scale. It is subjective and specific to every individual. Fairness includes assessments for, among many other values, equity, wealth, proportion, beauty, worth, privilege, ability, performance, reward and penalty. (Actions causing harm such as discrimination, cheating, favoritism and the like are usually unfair, except when they are overridden by political correctness). The assessed balance may apply 

  • to transactions (fair deal, wages, value, share, offer, ..), or
  • to the states of individuals or groups of individuals (unfair wealth, misery, poverty, sickness, ..), or
  • to their actions (fair blow, play, throw, catch, ….) , or
  • to the behaviour they receive or don’t receive (fair treatment, chance, review, hearing, assessment, result, ….).

(There are other meanings of fair – a market fair, fair weather, fair skin, etc. – but these are not considered here). Strict equivalence is not a requirement for a balance to be considered fair. Sometimes, but rarely, the comparison may be relative to some expected standard rather than between people.

What is fair then depends upon each individual’s own set of values. Different values or sets of values give differing assessments of fairness. Giving different weights to different values would change the assessment of fairness. What appears fair to me today may not seem fair to a different observer or even to me at a different time. The ability to assess fairness is clearly a function of cognition. Sometimes we do extend the quality of fairness in our descriptions of the animal world. But in the animal world, it seems that only some of the primates (chimpanzees for example) may have some vague notion of the concept of fairness.  Whenever there is a collective human assessment of what is fair, it is built up from developing some form of consensus from the various individual assessments of fairness. But the assessments by individuals must come first. 

Fairness, at its core, emanates from individual cognition and an individual’s set of values and the application of those values to a comparison and an assessment of balance. Unfair may contribute to wrongness but is not necessarily improper or illegal or immoral.

Just/Justness

Just and justness, on the other hand, only emerge in a societal context. They too are defined through their antonyms. They always involve a judgement by, or with reference to, some authority. A judgement necessarily requires speaking from authority, but it may be explicit or implicit. While an individual can have an assessment of fairness without necessarily referring to a society, an individual’s perception of unjust needs reference to a surrounding society. The value scale is now of a formal wrongness where some societal authority defines the just-unjust value scale which, in turn is, a composite of various aspects of wrongness. The scale is open at the unjust end but cannot exceed beyond just. (A reference to more just is not an excess of justness but actually about less unjust).

The authority may be explicit, emanating from a prevailing power in a society (setting laws, rules, regulations, instructions, ..), or implicit, when the judgement is based on moral or religious or societal authority (correctness, morality, conscience, convention, ..). Correct, or proper, or moral, or legal, or deserved are all judgements made from a position of authority. Justness is still about balance, but a balance against a measure of wrongness based on societal rules originating from some authority (governments, religions, gods,  …). It also begins by first having a concept of what what just is not. To be assessed as unjust must always include this element of formal wrongness. Wrongness is a composite judgement which includes one or more of being incorrect, improper, unfair, illegal, immoral or undeserved. These assessments are not compared, in the first instance, between humans but against societal norms as decreed by authority. The weight given to different aspects of wrongness determines the position on the just-unjust scale. At least one component of wrongness is necessary but may not be sufficient for being unjust. Thus (unfair + deserved) may be just while (fair + illegal) may be unjust. It is not implausible, for example, that an action which is improper, incorrect, immoral and unfair, but which is compliant with law, escapes being labeled as unjustUnfair is silent about wrongness and becomes unjust only if it is also adjudged to be sufficiently negative on the wrongness scale. Unjust is not necessarily harmful or unfair.

It is doubtful if any other species we know of makes the leap from fair to just. I make the distinction between justness and fairness primarily by differentiating between the individual and the collective (society) and on the different value scales in play. Fairness is a judgement of balance while justness is a measure of formal wrongness. I can judge what is fair, but some authority within society must be called upon to determine what is just.

Fair = balanced along the harm-benefit value scale as perceived by an individual’s set of values

Just = not negative along the just-unjust, wrongness scale as determined by some societal authority

Justice/Injustice

The primary meaning of the word justice as a noun is: “the achieving or maintenance of what is just”. However the word also has other meanings such as a judge, the maintenance of law, the quality of being just (justness), correctness or a justice system. I take only the primary meaning here: “the achieving or maintenance of what is just”. (I have more to say about justice systems later).

The philosophical concept of justice arises only because injustice is first perceived to exist as an imbalance in human relations within a society.  A society without any perception of injustice could not, from nothingness, dream up a concept of justice. Just as a creature without vision could not dream up the concept of red. Human societies pride themselves on having a sense of justice and on their institutionalized systems of justice. Most would claim the objective of striving for a just world. But in a completely just world the concept of justice vanishes, just as in a universe at equilibrium, change – and therefore the universe – vanish. Justice cannot exist without injustice first being perceived as an imbalance within a society. A paradox lies in that while the pursuit of justice is a cherished part of the human identity, in a perfectly just world, the concept of justice could not emerge. It follows that a perfectly just world could only contain a humanity which had no conception of injustice.

The Justinian definition that justice is “the constant and perpetual will to render to each his due” is 1,500 years old, but is still valid and as good a theoretical description of justice (as the maintenance of what is just), as any. “To each his due” requires a judgement from an authority competent to decide what is due. “To each” also implies everybody. Theoretically, justice should then be the pursuit of a state of justness where everybody gets their due – good, bad or indifferent. As a synonym for justness, justice ought to be as much about due reward as it is about due penalty. In practice, however, justice is predominantly about what is due for wrongness rather than what may be due for rightness. In common usage, justice is about the righting of undue wrongs, and very seldom about rendering of due rewards. When reward does engage justice, it is more often as an injustice consequent to a reward denied. It is sometimes seen as a property of the law. But that doesn’t really work since not everything compliant with law is necessarily just. Law specifies the wrongness scale but is not, actually, about the quality of wrongness. Whereas justness should be equally about due punishment and due reward, justice is predominantly about what is due for that wrongness which is adjudged sufficiently wrong to be labeled unjust.

In current practice, justice is no longer about what is due to everyone and is restricted to be what is due to every wrongdoer. Justice is now just a sub-set of justness. Justinian’s definition has effectively been modified.

justice = “the constant and perpetual will to render to each wrongdoer his due”

Justice Systems

Justice systems are always societal constructs made or maintained by the prevailing power. They are made up of institutions and procedures in a society, established by law, and concerned solely with the enforcement of law. Whether it is a system established by a sporting club (discipline committee), or a company (grievance process) or the full-blown paraphernalia of a state (Justice System), it does not deal, except as a corollary, with fairness or justness or even justice. It is only concerned with a portion of that fraction of unjust or injustice which is illegal. To the extent that law is imperfect and not all laws are just or fair, it also deals with just or fair acts which happen to be illegal. Justice and The Law are shrouded in a halo of sanctity which is a mirage. There is nothing absolute or fundamental or divine about the justice pursued by justice systems.  It emerges in the context of a society and varies with time, society and the prevailing power. A justice system is not so much about attaining a state of justness as it is about being seen to be addressing some of those who have done harm and have created societal imbalances. It is a highly pragmatic, societal construct for the visible disbursement of future harm to a select few formally adjudged to have done something illegal which has caused harm.

One could hope that a justice system would promote a general state of justness in society but that would be entirely delusional. One might think, more practically, that a justice system existed to promote a Justinian form of justice in a society, where everybody got their due, but even that would be hopelessly naive. The UK Ministry of Justice “definition” reads like a corporate mission statement written by a PR hack: “The purpose of the Criminal Justice System… is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent”. 

Consider first how limited the scope of application of any justice system actually is.

  • Start with all received behaviour and actions where either harm or benefit is caused and something “is due”, (All events = N)
  • Then take those unjust instances where received behaviour has caused harm and can be labeled wrong. It is only a guesstimate but this is certainly less than 50% of all events and more than 10%. I assume the 80/20 rule. (Wrong, harmful events = 0.2N)
  • Only a portion of these wrong events will be non-compliant with established laws, Again say 20%. (Wrong, harmful, illegal events = W = 0.04N)
  • Only a portion of these illegal events will attract the formal attention of the justice system. The harm done must usually be above some threshold to trigger societal interest. No harm, no foul is one boundary condition often applied. Globally, and considering all forms of illegality, one estimate is that less than 20% are reported to justice systems. (Events entering the justice system = 0.2W = 0.008N)
  • The Crime Detection Rate is the number of cases where someone is identified as a suspect in a reported crime. This varies from about 90% for death by road accident, to 80% for murder, and down to 15% for burglary and 10% for fraud or sexual offenses. Say 30%. (Suspect detected = 0.06W = 0.0024N).
  • Less than half of those suspected proceed to formal prosecution. (Cases prosecuted = 0.03W = 0.0012N)
  • A majority of prosecutions do result in convictions. Conviction rates in justice systems vary from a low of about 50% in some African and Asian countries to a high of about 99.9% (Japan, Russia). In Europe and the US they are around 70 – 80%. (Which also suggests that the presumption of innocence has been largely negated once a formal prosecution occurs). Say 70%. (Number receiving their due = 0.021W = 0.00084N)

These are just guesstimates but it is apparent that no justice system can address and “render their due” to more than about 2% of all illegal events (or 0.1% of all events which create a “due”). It would seem that the societal exercise of justice is satisfied by addressing just this tiny fraction of events that could be addressed. That is not to say that justice systems don’t serve a critical purpose for all societies. But the primary purpose cannot, by any stretch of the imagination, be to achieve a state of justness for all, or even justice for all, in the society concerned.

The bottom line is that justice systems decree and implement harm for those convicted. In fact it is the only recourse available to justice systems. The past cannot be changed and the only tool available is future harm. This is not restricted to criminal justice. Even in civil justice suits when perceived harm is brought to the courts, the recourse of the justice system to redressing balance (if imbalance is adjudged to exist and be illegal), is to decree future harm for the “wrongdoer”.

What, then, is actually achieved by justice systems?

In practice, every justice system is concerned only with a tiny fraction of all illegalities. It

  • decrees and implements harm to a select few,
  • is a PR exercise to demonstrate that the prevailing power has matters under control,
  • shows, as a deterrent, that some of the most egregious wrongdoers can be detected and “rendered their due”.

The reality is that every justice system (including its prevailing laws and institutions) is built on the core assumption that societies, for the smooth functioning of that society, must be seen to be pursuing justice. What justice or justness is actually achieved in the society at large is entirely incidental.

Doing harm to others is “bad”, except when it is just or decreed by a justice system.


Related: Laws are made to be broken

Without laws there are no law breakers. It is not only that law breakers are created by human laws, human laws need law breakers. Laws are established in the first place to prevent some human behaviors which society judges to be undesirable. But if everyone follows a law then that law is unnecessary, and if no one follows that law it is worthless. One could well say that law breakers perform a fundamental and necessary service for society. They keep laws alive. Without law breakers, there would be no need for laws or legislators or lawyers.


 


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