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Laws and Justice
Abt_Nihil at 3:50AM, Jan. 29, 2010
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Re: Chapter 15, Page 09

Abt_Nihil
It's a clichee, but the law doesn't have anything to do with justice… and that's not a shortcoming of any actual law, it's systematically so. Understanding that, one might even make peace with lawyers!
DAJB
Oh, no - I could never let lawyers off the hook that easily! It's true that the law often has nothing to do with justice but I would argue that, if operated correctly, then it should. If it doesn't then, by definition, it's representing injustice and, if that's the case, we'd be better with no laws at all. Even a toss of a coin would ensure a just outcome 50% of the time!
First of all, not everything is either just or unjust. Most domains which are regulated by laws are not domains of justice, because most areas of human conduct aren't. As we go about our daily business we'll rarely be prompted to think about anything in terms of justice. The fact that I'm writing this now is, I hope, neither just nor unjust. Still, while doing so, I'm in accord with most local laws and even, hopefully, good taste ;-). So, a lot of actions are neither just nor unjust, and thus, only a fraction of all laws are entering domains of justice and can thus potentially interfere with anyone's sense of justice.

Thus, most laws shouldn't even “have something to do with justice” (to defy your loosest claim :P).

But what about the ones that do? Should they at least strive to be just?
Well, what does it mean, that “a law should strive to be just”? Does it mean that:
(1) It should accord with intuitions of justice?
(2) It should accord with some sort of objective justice?
(3) It should accord with its own measure of justice?

Obviously, I'd argue against each of the three options. The first one is ruled out pretty easily - intuitions about what is just conflict in every case. There may be a common sense about what is just in a given social context, but it would have to be justified by invoking “objective justice”. So we are left with (2) and (3). And I'd argue against both by pointing out what laws are for.

The classic positions here would be contractual theories, most notably Hobbes' Leviathan. It supposes that states are created in order to establish social conduct. Without states human beings would end up in a natural order, an idealized state in which life would be “solitary, poor, nasty, brutish, and short”. Laws, in turn, are rules of conduct specifying the state's form. According to Hobbes, any state is better than none. And let's suppose that the worst state would be one made up entirely of unjust laws. It would still be a justified state.

Q.E.D.: Laws and justice are logically independent :D

You see, I haven't even been talking about the actual practice of the law today. I'm sure that - having a background in law - alejkhan would have a thing or two to say about that :D (I remember some discussions about the depravity of actual legal systems with her :P)

Also, a quick remark on why it is so tempting to think that laws “should have something to do with justice”:
I think that is because “just” is a normative term, just like “good” and “beautiful”. These terms work like: "If A can be (insert normative term), A should be (insert same normative term)." Anything that can taste good, should taste good! I think the fallacy lies in supposing that laws are in some way more deeply intertwined with justice than, say, your neighbor's treating his wife. Somehow, we expect lawyers to exemplify justice, more often than we expect our next man to do so.
last edited on July 18, 2011 10:23AM
DAJB at 5:26AM, Jan. 29, 2010
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See, I'd disagree even with your starting point.

Since you mentioned it, let's take the law of contract, for example. A contract is a commercial agreement and I'd argue that there is indeed a “just” position - i.e. that both contracting parties should enter into the agreement voluntarily and that both should benefit in some way.

In a world without contractual laws, however, the stronger of the two parties would always be able to enforce his will on the other, whether it's a buyer refusing to pay or a supplier refusing to deliver. The law of contract provides for justice by allowing an aggrieved party to seek redress. A lawyer who seeks to bend and twist and apply the letter of those laws in a way that undermines the spirit of those laws is basically a disgrace to his profession. Sadly, many (possibly even all?!) corporate lawyers do indeed fall into that category.

The same is true of criminal lawyers. As a principle, it is perfectly understandable that most modern Western societies have developed a legal system that entitles the defendant to legal representation. That is, of course, “just”. However, when a prosecuting lawyer considers a trial a victory because he has successfully obtained a conviction (even though the defendant was clearly innocent) or when a defence lawyer considers a trial a victory because he has obtained an acquittal (even though the defendant was clearly guilty), then they should be ashamed of themselves. By frustrating justice in this way, they are abusing the law, not serving it.

The spirit of the law is all about justice. It is only because lawyers deliberately misuse and exploit the letter of the law that we consider there to be a distinction.

Judges are not exempt from this either. A judge who blindly sentences the victim of a crime to jail because the letter of the law says that's the appropriate punishment is basically a waste of space. A filing clerk with a sheet of tick-boxes could pass those kinds of judgements! If we are going to have highly paid judges, they should have the courage to apply the law in a way that reflects what is just, even if that means making exceptions based on prevailing circumstances. Some judges are prepared to do that, of course, and that's how new legal precedents are established. A great number, however, do not. They are little more than unimaginative bureaucrats who consider the law as being fixed in stone, there to be applied even if its application punishes the wrong party.

To say that the law and justice are two different things is clearly true and I see that as a sad indictment of our legal systems. But to argue that they should be two different things is just plain scary!

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Abt_Nihil at 8:09AM, Jan. 29, 2010
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I think what judges and lawyers do is interpret the law (and here I'm obviously not talking about cases like “guilty/not guilty”, but rather “guilty of what?” ). A laywer always has a sort of goal - a preferred interpretation, so to speak. Whoever hires a lawyer for a specific case in court has an expected outcome and thus sets the goal for that lawyer. The lawyer's job is to find the best way to interpret the law in order to reach that goal. Justice doesn't figure into this much. And I'm saying this without much regret. You might even say that a lawyer who's constantly trying to enforce justice wouldn't be too well off! (I'm saying that with much more regret.) (see footnote) A judge's job is indeed a bit different, since he should interpret the law according to how it is actually to be interpreted.

Laws are vague because all general rules are necessarily vague. What judges and lawyers do is apply these to specific situations. Judging whether a given specific action was in accord with the law is not something any filing clerk can do. (If only because no one would confer that kind of authority to a mere filing clerk!) “Following the letter of the law” - that's a metaphor to me. You'll always have to judge whether a given case falls under any of a number of generalizations, and that's not a job for a file clerk, as simple as it might be.

There can be guidelines to this job of interpretation, and a judge's pretheoretical notion of justice may be one of those. But what I expect from a judge is not an interpretation of the law according to his own notion of judgment (that would be quite scary, wouldn't it?), but a clarification of whether or not my own action was in accord with the law or not. That's clearly not a matter of justice. Judges are not meant to interpret a law to yield the best outcome in a case, they must ask themselves how it is meant to be interpreted (and there are many ways to find that out; again most of them having nothing to do with justice).

Also, I am not saying that the law and justice should be different things, but that they are (conceptually, not empirically). Empirically, according to what I said, whenever a law can be just, it should be. That follows from the very meaning of the term “just”. (Everything should be good, true, beautiful and just, but that is quite trivial.) But the function of a law is not to enforce justice.

DAJB
The law of contract provides for justice by allowing an aggrieved party to seek redress.
Well… what did I just write? You are right, the purpose of some laws is indeed to enforce justice. Hm. Let's look at this category of laws more closely: I would guess that if any form of social conduct would repeatedly yield unsatisfactory results, a law might be conceived to alleviate those. And thus, if we are repeatedly faced with injustice, we might want to see a law passed that enforces justice in this sort of case. And if this very law gets passed, a lawyer's or a judge's trying to undermine it by trying to get an unjust situation to nevertheless be ruled legal would mean undermining this very law. But what has really gone wrong if unjust goings-on are ruled legal, and thus in accord with a law meant to enforce justice? Is the law too weak? On a sidenote, laws that are supposed to enforce justice directly must seem like 2nd order laws in my conception… but that would be begging the question. Or not? Maybe we should see how many actual laws are pertaining to matters of justice, and how many aren't.

However, my original point would still be valid if it's indeed incorrect to view laws (generally) as a means to make sure that some pretheoretical notion of justice is enforced. And I'm quite sure that that would be a pretty original view of what a law is. Of course I'm not a lawyer, and I don't know if my common sense is to be trusted any more than yours.

Also, I think we can rather easily distinguish between the function of a law and the purpose of a law. We may want a law to do this and that, to govern traffic (clearly not a matter of justice) and outlaw child porn (probably scraping the boundaries of what's just, and right in the middle of the domain of morals) etc. But we can only achieve these purposes by exploiting the logical structure of legal systems - their functionality. Legal logic is independent of the logic of any given notion of justice, but of course logical independence is not exclusion! That is why we can fashion specific laws to serve just purposes.

This post is getting rather extensive, and I may be indulging just my own train of thought… What I have been trying to do is counter your theses. But you still owe me some basic justification for those - for example, why should “the spirit of the law be all about justice”? You've given me a good example of a law that is meant to serve justice (and while I'm sure there are many of these, I don't believe that they serve as defining examples of the term “law” ), and I've tried to integrate it into my view. If I were to infer an underlying view on your part, it may be that all legal systems were developed exactly because at some point in the past we were living under unjust conditions, and legal systems were created to remedy those.

Apart from that, of course there's nothing to be said against good polemics against judges and lawyers. Heck, you know I love Brazil!

(Footnote) In a just state, he should of course be able to at least reconcile his job with a notion of justice (but that depends on this notion of justice - there are some pretty crude notions of justice at work today). I'm adding this only as a footnote, because I wouldn't want to carry the struggle between “someone's notion of justice” and “what is actually just” into the main text. It is good and right to expect laws to be just. However, laws should not be expected to be in accord with every available notion of justice. What's the foundation of justice? Common sense? God? Should the latter be the foundation of a law? Can the former?
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DAJB at 10:24AM, Jan. 29, 2010
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I think perhaps you have a very different notion of justice because you're coming at it from an academic/philosophical viewpoint, rather than a practical one, or maybe it's simply that the German legal system is very different from ours. I wouldn't know how to give you “some basic justification” for my standpoint because, to me, “the law” and “justice” are (or should be!) virtually synonymous. The law is simply the function by which justice is put into effect.

Here's a definition from the internet:
jus·tice n.
1. The quality of being just; fairness.
2.
a. The principle of moral rightness; equity.
b. Conformity to moral rightness in action or attitude; righteousness.
3.
a. The upholding of what is just, especially fair treatment and due reward in accordance with honor, standards, or law.
b. Law The administration and procedure of law.
4. Conformity to truth, fact, or sound reason: The overcharged customer was angry, and with justice.
5. Abbr. J. Law
a. A judge.
b. A justice of the peace.
Obviously it would be possible to find other definitions online but this was the first one I came across (i.e. I didn't search for one that specifically supported my view!). I think it's clear from this definition that the terms “justice” and “law” are explicitly linked. Obviously titles will be different in Germany but it's no accident that, in England, judges are known as “justices” (see definition no. 5 above!) and, until recently, our top law court (for civil cases) was even housed in a building known as the Palace of Justice (a lovely old Victorian building, by the way!).

Abt_Nihil
What judges and lawyers do is apply these to specific situations.
This is a very limited view of the role of a judge, or at least of an English judge (I can't speak for Germany). Here judges are law-makers, not simply law-appliers! English law is made in a number of ways. Basic laws are passed by Parliament obviously, but these laws represent a very small portion of the total body of English law. By far the greater part is made up of case law and precedent, i.e. by the decisions of those judges who have had sufficient courage and wisdom in the past to step back from simply “applying” laws if to do so would have resulted in an inequitable (i.e. unjust) outcome.

In fact, the concept of “equity” is hugely important in English law. Essentially it arose specifically to ensure a just outcome in cases where the rigid “application” of the written (or common) law would result in an injustice.

I don't know how different any of this is to the system you may be used to in Germany, but I hope it goes some way to explaining why, from the perspective of English law, the idea that the law is there to do anything other than promote justice simply makes no sense at all.
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Abt_Nihil at 1:53PM, Jan. 29, 2010
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Ah! I apologize, I wasn't taking into account the specific Anglo-Saxon way of making laws. Indeed, it differs a great deal from how laws are made in Germany. I did more or less learn about this at some point, but it's not always present, not even when talking about it with Englishmen! ^^;

As I understand it, the difference is mainly that the Anglo-Saxon laws are more or less a sprawling catalogue of individual court judgments on specific cases. And indeed, German law is NOT. It is a collection of general statements about what is legal and what isn't. However, amendments can be made pretty much the Anglo-Saxon way: A court will make a precedence case which subsequent ones would follow.

Still, shouldn't there be a notion of a more fundamental law? Like, in order to put the Anglo-Saxon law into effect, there would have to be a prior ruling to get the catalogue started! Those would be the basic laws “delineating the state”, as I put it. Surely those wouldn't be decided on by courts!

There are differences even within the Anglo-Saxon system (the American state came into being in a very different way than the ones making up the United Kingdom). But despite all those differences, there must be one differentiation that's part of every legal system: That between laws pertaining to the form of a state, and those pertaining to rules of conduct within the state. Right? I think once that difference can be made, my argument could be validly re-stated :D

(A first hint that the difference can be made is that someone for whom law and justice would be synonymous shouldn't even have a standard by which individual laws can be measured! So the fact that you can coherently claim that some laws aren't just, or that lawyers and judges aren't “meting out (pure unadulterated) justice”, should hint at a deeper foundation of the term justice than the term law.)
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DAJB at 3:06PM, Jan. 29, 2010
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Abt_Nihil
in order to put the Anglo-Saxon law into effect, there would have to be a prior ruling to get the catalogue started!
Absolutely. That would be the original Act passed by Parliament. But, as you rightly say, as different cases are brought before the courts, exceptions are made (in, I would argue, the interests of seeing justice done!) and the decisions reached in those cases become legally binding on any subsequent cases which can be shown to have the same characteristics.

Abt_Nihil
laws pertaining to the form of a state
Well, if I understand you correctly, you have to bear in mind that the UK has no written constitution, so we are a little different to many other countries (aren't we always?!) However, even where there is a formal constitution (such as the US and, presumably, Germany) surely the principles enshrined therein are based on the Founding Fathers' notion of a just society?

Abt_Nihil
someone for whom law and justice would be synonymous shouldn't even have a standard by which individual laws can be measured!
In theory I'd say that's correct, except for a number of factors: (i) we're talking about what should be the the case (rather than what is!); and (ii) the notion of justice is not only subjective but also changes over time. Even a law which is seen to be perfectly just at the time it is enacted, can come to be seen differently in later times, as circumstances change and/or people become better educated / more enlightened.

In the UK changing opinions of what constitutes a “just” application of the law are often handled not by the passing of new legislation by Parliament, but through the concept of the “reasonable man” test - i.e. what would a “reasonable man” think/do in these circumstances? Of course, opposing lawyers will try to promote different ideas about what that fictitious “reasonable man” might think or do, but - in criminal cases at least - that's where the jury system is supposed to kick in. I'm not saying it necessarily works, of course. If it did, we wouldn't be having this discussion! ;-)
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Abt_Nihil at 3:31AM, Jan. 30, 2010
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Thanks for clarifying!

DAJB
However, even where there is a formal constitution (such as the US and, presumably, Germany) surely the principles enshrined therein are based on the Founding Fathers' notion of a just society?
I'm still finding it a bit unintuitive that the first thing when delineating codes of conduct for any society would be principles of justice. As I said, we don't often invoke an idea of justice in everyday life. We need to cross the street, buy groceries, go to work, go about our hobbies etc. - A state should make all that possible. Matters of justice might be considered along the way, but I can't see why they should have some sort of primacy. Similarly, a court may rule that you violated traffic rules, and invoke a law in doing so. I believe many legal cases are like that, in that they won't directly involve matters of justice.
To take it a bit farther and state a more provocative thesis: whenever we have to deal with matters of justice, it already shows that the original rules of conduct are flawed in some way.

DAJB
Abt_Nihil
someone for whom law and justice would be synonymous shouldn't even have a standard by which individual laws can be measured!
In theory I'd say that's correct, except for a number of factors: (i) we're talking about what should be the the case (rather than what is!); and (ii) the notion of justice is not only subjective but also changes over time. Even a law which is seen to be perfectly just at the time it is enacted, can come to be seen differently in later times, as circumstances change and/or people become better educated / more enlightened.
That's just an elaboration of my argument in different words, I think. It underscores the need for an external source of justice which is not to be found within how laws are. To say that justice is informed by how laws should be is not making things any clearer. Because laws should be just - that's the triviality I granted. There isn't any substantial notion of justice to be derived from how laws should be. Rather, it's the other way around: How laws should be is derived from a notion of justice! And, as you say quite rightly, this notion won't be derived from how laws are, since among other things, it doesn't take subjectivity and change over time in account.

I'd wish to add that talking about the source of justice isn't so much my concern; my original concern was to make clear how law and justice are two separate things. That's not to say that laws can't or shouldn't be just; but rather that the legal system has its own logic, into which justice doesn't figure as a currency. I think it was Max Weber who came up with this (nowadays pretty commonplace) idea of separate social systems who all have their own “currency”, and the legal system's currency would be something like “Recht bekommen” (which in English would literally be something like “getting your right”, but it basically means that someone with legal authority, like a judge, grants that you are right in a legal matter). “Recht bekommen” is not reducible to an idea like “justice being done”. While matters of justice may figure into this, they are logically independent of the legal process. It's like saying that the financial system is independent of considerations of justice: The currency is money, not justice. Still matters of justice can (and should!) be involved in financial transactions, but the idea is that they are in some way external to the financial system's logic.
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DAJB at 5:56AM, Jan. 30, 2010
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I can no longer tell if we are miles apart or very close but circling around each other!
Abt_Nihil
We need to cross the street, buy groceries, go to work, go about our hobbies etc. - A state should make all that possible.
Should it? I'd say that the state should have no say in that whatsoever. Only if doing those things would give rise to some form of injustice (for example if, in crossing that street, you were somehow impinging on someone else's life, or if your hobby put someone else at risk) should there actually be a law to govern those things.

This is one of the huge problems we Brits have with the EU: it insists on trying to make laws which are unnecessary, telling people how to do things even when there's nothing wrong with doing them a different way. (The fact that the people making those unnecessary laws are paid large salaries doesn't help, either!) I wonder if that's why you and I have such different views on this. Perhaps the mainland European mindset has become accustomed to the idea of laws which have nothing to do with justice, while we little islanders are still stubbornly fighting against the trend for “the state” to interfere in every area of our lives!

Abt_Nihil
whenever we have to deal with matters of justice, it already shows that the original rules of conduct are flawed in some way.
No, I'd disagree with that. I'd say it's more likely to mean that a minority of people are refusing to conform to those accepted “rules of conduct”, not that the rules themselves are necessarily flawed (although in some circumstances they may be!)

Abt_Nihil
To say that justice is informed by how laws should be is not making things any clearer.
Actually I'm saying the opposite: that the law (and the operation of it) should be informed by justice; not vice versa.

Abt_Nihil
the legal system has its own logic, into which justice doesn't figure
Now, I think, we've come full circle! I agree with you that this has become the status quo. That was, after all, the whole reason for Thrawn's statement on Page 9 of Chapter 15. But I still maintain that this is not how it should be or was ever intended to be.
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Abt_Nihil at 4:25AM, Feb. 1, 2010
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Let me just make it clear that (a) I'm not a big fan of EU regulation and (b) I don't necessarily identify with anything the “mainland” may represent. What's true is that I've never been a big fan of completely free markets, and the current crisis has validated my opinion a bit. But I'm not a big fan of tightly controlled markets, in the communist sense, either. So I am for regulation to some reasonable degree. That clearly doesn't include regulating curvatures of cucumbers and bananas.

Nevertheless, thinking that the state's only purpose is to be found somewhere in the domain of justice remains a highly contra-intuitive thought to me. I can't even begin to see how that may be true, because in 99.9%, what the state does has nothing to do with justice. Again, you might say: well, it may be that way, but it shouldn't be. And once again, I would disagree.

DAJB
Abt_Nihil
To say that justice is informed by how laws should be is not making things any clearer.
Actually I'm saying the opposite: that the law (and the operation of it) should be informed by justice; not vice versa.
This is just a misunderstanding. My point is that if you can't clearly separate the law and justice conceptually, then the pressing question would be: what's the standard by which justice is measured? What's the source by which any notion of justice is informed? What I wanted to make clear is that it isn't how laws are (you agreed that at least partly it's because of subjectivity and change over time), but neither how laws should be (the quoted section). So laws can't be a standard either way. If they can't, justice and law are conceptually separate, and thus, your saying that they are “synonymous” seems rather hard to believe.

DAJB
Abt_Nihil
the legal system has its own logic, into which justice doesn't figure
Now, I think, we've come full circle! I agree with you that this has become the status quo. That was, after all, the whole reason for Thrawn's statement on Page 9 of Chapter 15. But I still maintain that this is not how it should be or was ever intended to be.
If something follows conceptually, then stating that it's normatively wrong is a bit irrational. (The rational thing to do would be arguing that it doesn't follow conceptually :P) If it follows conceptually that the legal system (just like any other social system - the system of education, the political system, art, science etc.) has its own logic, then you can't bemourn that fact (emotions are probably not too rational, but at least you should know that you shouldn't bemourn that fact while in fact bemourning it :D). So, all I can do is strengthen my point that it does follow conceptually: Picture yourself as part of the audience, or even as a lawyer or judge, in a court, faced with a legal decision which you deem unjust. The only option to “claim justice” is to force another legal decision. You can't - ever - force a just decision, the only thing you'll ever get is a legal decision. You may say: Well, the legal decision should be just - but that won't ever help you, at no stage in any legal process. If you're unhappy with this fact, try to envision a system that constantly produces just decisions, not legal decisions. It would (a) be very different from any legal system, and (b) it would probably be far from anything we've got in our (more or less) free societies.
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DAJB at 5:21AM, Feb. 1, 2010
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Abt_Nihil
99.9%, what the state does has nothing to do with justice.
This may well be true. (I shall take the actual percentage in the spirit in which it was intended!) But then those parts which have nothing to do with justice, do not need to be regulated by law.

Abt_Nihil
what's the standard by which justice is measured? What's the source by which any notion of justice is informed?
Ah, now that's the real question! I don't see there can be any other measure than that which the majority of people believe to be just. Obviously opinions are subjective (hence the need for the majority view to prevail) and they do change over time (hence the need for judges and lawyers to move with the times and use discretion when interpreting/applying/modifying laws). Otherwise we would still be subjected to “trial by ordeal”!

The point is, we have those mechanisms already. The jury system (and even election manifestos) are ways of trying to gauge what the majority thinks (I come back to the “reasonable man” concept), and judges do have the ability to make decisions which modify the law if they feel justice isn't being served. The problem is that too few of them have the courage (or wit?) to use the discretion they have.

Abt_Nihil
Picture yourself as part of the audience, or even as a lawyer or judge, in a court, faced with a legal decision which you deem unjust. The only option to “claim justice” is to force another legal decision. You can't - ever - force a just decision, the only thing you'll ever get is a legal decision.
This sounds like it's splitting hairs to me. If you make “another legal decision” and that decision is just then it is, by definition, a just decision. I do not see why you consider these to be mutually exclusive.

Anyway, we clearly aren't going to reach agreement on this, so perhaps it's time we simply agreed to differ. At least we both agree about bananas and cucumbers, so that's something! ;-)
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Abt_Nihil at 11:26AM, Feb. 1, 2010
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It's okay to differ on degrees of regulation. It's one of the oldest disputes ever - to what degree a given system should be regulated. I have often defended a position of “the right measure” of regulation against both the advocates of a completely free market as well as against those who would argue for something I'd deem overregulation. Those have probably been some of the most frustrating discussions I've ever led - for example, it seems inconceivable to me that Obama, trying to introduce the least measure of reasonable regulation, could even be met with opposition.

It's also OK to differ on whether the jury system is to be preferred to one in which judges take the rule of jury (as, I believe, it is in Germany). Both systems would necessarily be flawed to some degree, since both subjective and objective aspects of justice will have to be balanced. You stressed the subjective aspects in your last reply, so I would stress the objective ones: Justice also depends on how things are, not just on what people think (- of course judges can't be completely objective either, but the thought is that they represent objectivity and can be held accountable if they don't meet objective criteria - a jury can't be held accountable in the same sense). But again, both of these aspects play a role.

What's a more interesting debate - and thus the reason why I've talked back so many times - is how much of the state's actions should be directed at justice. It goes without saying that to be able to discuss interesting things in detail, the participants of this discussion need to agree on a great deal. So, when I disagree, it's still a friendly disagreement between people who agree on a whole lot!

So while we can leave open many things, I would still like to add a suggestive question. What about the many, many conventional rules which need to be abided by in daily life? I mentioned traffic regulations, but of course there are a whole lot. Like settling on a common currency. Maybe even things like a common language. While I wouldn't say that it's solely the state's purpose to enforce failures to meet these common standards, the state is one of the reasons why they are continuously upheld. Most of our ways of life are only possible because we share trust in countless conventions. And I believe this trust is validated only by institutions, the highest of which would be a state. Once a state breaks down, what ensues is not injustice, but chaos - the inability to settle on common standards.

So, I'm not really leading this debate to come out triumphant in the end, but because I find it so inconceivable that the state should primarily or even exclusively be responsible for anything related to justice.

(I can only say it again: anything I'm saying does NOT EXCLUDE that any stately goings-on can or should be just.)
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DAJB at 12:41PM, Feb. 1, 2010
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I'm not sure I should answer this because, if I do, I can see us arguing forever! Oh, well - here goes:
Abt_Nihil
I would still like to add a suggestive question. What about the many, many conventional rules which need to be abided by in daily life? I mentioned traffic regulations, but of course there are a whole lot. Like settling on a common currency. Maybe even things like a common language.
Traffic rules: traffic rules are only there because, without them, a driver could blithely be a danger to others and it would be unjust to allow him/her to be so. It's no coincidence that, when there were fewer cars there were fewer accidents and therefore fewer rules. Currency: the state may provide a common currency to facilitate trade, but there is no law that forbids the use of alternative currencies to settle transactions. A small number, in fact are still settled by barter. Language: Again, there may be a common language, but it is not illegal to use alternative languages (or even non-linguistic forms of communication) if people choose to do so.

With the exception of the traffic regulations, I do not see that the law plays or indeed should play a role in these examples. I'm beginning to suspect that you are working to a much wider definition of “the law” than I am. And that may well be at the root of our failure to find common ground.

Abt_Nihil
So, when I disagree, it's still a friendly disagreement between people who agree on a whole lot!
Likewise. So, along with bananas and cucumbers, we now agree on three things! ;-)
last edited on July 18, 2011 10:23AM
Abt_Nihil at 6:08AM, Feb. 2, 2010
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DAJB
I'd say that the state should have no say in that whatsoever. Only if doing those things would give rise to some form of injustice (for example if, in crossing that street, you were somehow impinging on someone else's life, or if your hobby put someone else at risk) should there actually be a law to govern those things.
I think that's why I was understanding “law” in a broader sense: I was rather talking about the state's duties than just laws (in a strict sense). And considering that the legal system is only a small part of the state's duties, that explains why I was wary of the thought that the state should only interfere if “things would give rise to some form of injustice”. My original thought was that, even if the legal system was all about justice (which I've denied often enough :P), there would still be a whole lot of other ministries. But, given that you seem to be ready to apply the terms “just” and “unjust” in a broad sense as well, I'm beginning to see how you might stretch the concept of justice to apply to virtually everything the state does. (For example, endangering someone's life by not adhering to traffic regulations is not a strict example of injustice in my book. There are other normative terms to be used to describe this situation, like “bad” or “wrong”, but “unjust”?)

On the other hand, you might also have a higher confidence in self-regulatory processes and actually think that the state should interfere in very few areas. Wheras I think most common standards need some sort of institution to regulate them.

These are more or less just footnotes to our discussion. My main argument would remain that all distinct social systems have their own currency, the legal system being one of those - and justice being something quite different from what any participant of the legal system is dealing in. I agree that the common-sense position would be demanding justice from judges, lawyers, and juries, and that by doing so we can actually get it in more than a few cases. But this is like demanding decisions and actions from politicans, health from doctors, aestehtic pleasure from artists etc. These properties are all logically distinct from the actual legal, political, medical and artistic systems.
last edited on July 18, 2011 10:23AM
DAJB at 3:49AM, Feb. 4, 2010
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Abt_Nihil
I think that's why I was understanding “law” in a broader sense: I was rather talking about the state's duties than just laws (in a strict sense). And considering that the legal system is only a small part of the state's duties, that explains why I was wary of the thought that the state should only interfere if “things would give rise to some form of injustice”.
Sure. The state is responsible for many things governed by rules, regulations, conventions and administrative procedures which I wouldn't necessarily see as being part of “the law”.

“The law”, to me, encompasses those things which we have to do do (or have to not do!), the failure to comply with which would leave us open to criminal or civil legal proceedings. It is in that context that I maintain that the interpretation, application, modification and practice of “the law” should be designed to give effect to “justice” (however that may be defined by the population of the time!)

I readily accept that “the state” has other responsibilities which have nothing to do with “the law”.
last edited on July 18, 2011 10:23AM

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