Some time back, I had a conversation with a district attorney about the idea of the legal system, not so much a debate, she felt of course that people that commit crimes should be put into jail, let’s not get too nihilistic and hold that axiom as dogma for sake of argument. I was more openly quæstioning the issue of how many innocent people are put into jail as a sacrifice for that ideal. After all—all there is to this is a lower bound of how many innocent faced legal discipline, ignoring for the time being the possibility that—of course—a guilty man can also later be ruled innocent.
Now, I personally believe one can ask and force people to compromise to help others, I think one can kill one man to save to others. And until some one has given me a tangible definition of the difference between ‘compromising another man for one’s own benefit’ and ‘refusing to put effort into helping another man’ I shall assume them to be merely politically differently coloured terms for the same concept. The difference between a terrorist and a freedom fighter of you like. Both come down to you gaining advantage and willingly letting another man losing some-thing for that goal.
So, I agree that—assuming the legal system helps to stop crimes—to a certain degree it’s reasonable to force innocent people to be compromised to help more innocent people. In fact, I of course don’t believe in the moral nature of legal systems and see it purely as asking a certain group, here criminals, to give up their gains for another larger group, here productive citizens. Seeing how the definition and popular opinion about what constitutes a ‘criminal’ changes dramatically over time, I have no reason at the moment to believe it’s any more than simply a system people have evolved to justify their system and actions and not having to face the fact that they as a majority sacrifice a minority for themselves by mentally labelling them ‘criminals’ and believe that some how they ’should’ be punished.
Her reasonable response in some-what similar colours to my open thoughts were. ‘Yes, but it’s a price we pay for it.’, the ‘we’, here is an interesting one. Who exactly pays for it? not I, I’m not innocently in jail, I assume her to not be either while we talked on Jabber. So it’s a price ’we’ ask other people to pay for us as I illustrated above. But it’s not as unfair as it sounds, as it’s still a democratic system and people have by majority vote chosen for it under the understanding that by sheer bad luck they too could be incarcerated innocently and have accepted that risk for the benefit of their secured safety. Though—it only takes 51% of the adult population that does not yet reside in jail—innocent or not—to decide this for the entire population. So theoretically, the minority can decide this for the majority, though that doesn’t seem to be the case and legal systems are overwhelmingly supported.
But there’s a catch to it, the population seems to support legal systems under misinformation, people make this choice effectively on the knowledge of only the lower bound I spoke of before, not many people seem to be actively conscious of the fact that it could, and most likely is, a lot higher than all the cases that were discovered of people being put to justice for a crime they didn’t commit. More so, the legal system itself seems to spread propaganda about lady justice being blind and judges being impartial, supposedly that people are innocent until proven guilty and other romanticized ideas about the functioning of the legal system that are blatantly not true. Judges as human are they are are far from impartial, one may be innocent until proven guilty on paper but de facto one has to face interrogations, one is ‘held for quæstioning’, one has already been compromised in one’s freedoms and desires before being formally convicted and most legal systems offer no compromise if a conviction is not obtained. Furthermore, of course a lot of judges have already made up their mind in advance. Maybe people know this on the street, but do they realize it? Are they really as conscious of this as of the fact that they have five fingers? Or do they just know this as a given to answer on tests but make their choices of life as if that fact isn’t there?
I don’t think people realize it at all, and many don’t even know it, people indeed seem to live their lives as if it’s true, the romanticized version of the legal system of impartial and blind judges that can separate fact from lies and speculation—it isn’t. Judges are essentially often amateurs about the things they have to rule over, often they have their experts with them but just as often they overrule their advice. The fact that in all cases, taking it to a higher court changes the decision of the judge, at least in magnitude and quite a lot of times changes the guilty to the innocent and the inverse seems to give it quite clear. Lady justice is not blind at all, she has very acute vision. If ‘justice’ takes into account that also the magnitude of the penalty is that which one ‘deserves’, then I don’t think a single man has ever been put to ‘justice’. Yet the populace that supports this system overwhelmingly seems to live in the feeling that it does function as an apparatus of justice rather than order. And perhaps not as orderly as many people also think. The fact remains that despite the legal system being there, crimes still happen. An interesting fact is also that on a world map, countries which have a very strict legal system tend to have a higher crime rate. Of course, either could cause the other and it’s well-conceivable that the populace demands higher punishments if crime rate increases, though it would seem intuïtive that as a larger percentage of the populace is composed of criminals, they would seek for less. An often cited example of course is that the Netherlands has very low cannabis consumption rates, despite the fact that it’s infamously legal in this country.
Another thing to account for is that even if people realized the true figures of the innocent being compromised in the name of the greater good, and even if they were quite high, people still maintain the ‘it’s not going to happen to me’, attitude. People tend to have this feeling that if they know, or even realize that bad thing x has a certain chance of occurring to random people. They still have the feeling it’s going to occur sooner to their neighbour than to the, and even sooner to a random person they never heard of. Humans are indeed inærently optimistic, and probably this weighs in their decision to maintain a legal system.
So, seeing that the people have been misled, and have misled themselves to make their decision to have a legal system? What would happen if there weren’t one? How moral is a random human being? What if there were just rules to keep, but one wouldn’t receive punishment for breaking them? Do humans beings not steal because they feel it to be ‘wrong’, or do they not because they don’t want to go to jail?
A thing to take into account is that ‘You will not beat a man to death because he stole a thing from you but call the police instead’ is another rule and law in this society. So, if one abolishes the state’s role in punishing people, the people will jump into that vacuum and take it on their own to punish criminals. Now some people might see this as an advantage and many people indeed have more often called for people being allowed to enforce the law on their own and have looked with dismay to people being punished more severely than a person that robbed their shop, because they beat that person practically to death for it.
And those rules are another example of order, say that a person has raped my daughter and I proceed to kill that person in rage. Many people would feel that I should not be put into prison and I can imagine it, the catch is here, ‘say that a person has raped my daughter.’. What I have done there is administered a death penalty for a crime as judge, jury, executioner, prosecutor, and legislative power against a man that ‘had a fool for a client’. I find it quite plausible that—certainly in my emotional rage—I got the wrong man. Maybe my daughter wasn’t even raped but just put up a story for some candy. So, imagine if we remove those rules? Then a lot of innocent people are going to get killed, and if we say you get acquitted afterwards only if you turned out right; still a lot of innocent people are going to get killed because people often think they are right when they are not in a fit of rage, and they have to go to jail themselves too afterwards. So this rule that you can’t take justice into your own hand serves as a rule of order.
Back to the example of the shop, we have a man caught in the act there, maybe a bit more trustworthy than a daughter coming to you crying that she’s been raped by a teacher and you jumping to your gun in rage. Say you can use more force than necessary to defend yourself on people you caught in the act, you of course have to prove afterwards that that person was really robbing your shop, that’s a lot harder to do of a dead man lying on the floor. So say you fail to prove that, and they did prove that you shoot him. You go to jail yourself, alternatively you can say that they have to prove that that person didn’t rob your shop. Well, then you’ve created a really handy way for killers to escape conviction as they can always claim those things, making it very hard for you to prove they lied. So then you end up with a system that lets the guilty go. The rule again serves for order, to let the legal system operate practically and efficiently.
Ultimately, the perception a lot of people have that these things should be allowed again seem to work on a romanticized idea of the legal system and the human ability to spot criminals you see in CSI and Law and Order. Take the film ‘Dirty Harry‘, it of course triggered a mass response from the people that police offers should have more freedom. But what happened in that film is fiction, and not reality. Understandably, many people find it strange that evidence that is illegally obtained cannot be used, after all, evidence is evidence no matter how it was obtained? Well, if you allow it and just discipline the officer that did so, they have a motivation to obtain that evidence, there being very good reasons that some of those methods are illegal. Say your hunches are wrong? you never see that in fiction do you? An officer trying to obtain evidence illegally but simply being wrong and having violated the privacy of an innocent man, or worse, tortured him. There’s a reason you can only go so far to obtain evidence. It doesn’t seem to happen in films like Dirty Harry, but police officers that are overly emotional about their cause and try to bring criminals to justice because they hate them tend to not think that clear and if they are set to get an innocent man into jail they better not have the luxury of obtaining their evidence in all the ways they like. Unusual in that this rule is there to protect the innocent at the expense of letting some guilty people walk away.
The thing I ask myself in this is what the optimum is, for me, clearly punishments should be lighter, not heavier, I see no single plausible reason why crime should increase if punishments are lighter, and they are and should be seen as a lesser evil and a vessel of order and not justice. Prævention should also have more emphasis over punishment, you don’t take innocents with that and better stop a crime than punishing some-one to prævent it a later time.
Ultimately, a tool I see to stop crime is to combat poverty, why resort to breaking the law if you have a comfortable life? It doesn’t apply to all people, I know and realize though. Another thing is to simply migrate the effect of crimes on the victim. How often have you been the patient of a crime you could ask yourself? Killed surely not, maybe a friend was killed? Not in my case or in most cases at least. Most people I knew that died died due to conditions, old age or bad driving, either of themselves or others. Not many people are truly that taken by crime, it might even be less than are innocently put away. A better solution for me would to provide for better funding and accommodations in cases of theft. As in the case of driving, many people that support higher punishments seem to also favour higher maximum driving speeds, while traffic is still a far higher cause of death than murder. It seems indeed that people are not that much interested in stopping death rates after all with their legal systems but simply getting people behind bars or punished in some way that conduct behaviour they do not approve of. No one hates a speeder, unless perhaps he crashed into your mother and killed her. But a thief or murderer, that’s another story.