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| | The Law Binds Us Together; the Law Splits Us in Two
Justice Douglas writes that "the rule of law..., evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together." Oliver Wendell Holmes, even in denying the mapping of law onto morality, comforts us with the thought that "the law is the witness and external deposit of our moral life." Douglas speaks of disparate selves bound together through the law. Holmes, in pointing to the externalization of our collective moral conscience, suggests a separation of the self through the law. Each vision is lovely. Each speaks to one thinker's dream of the law. Each statement is a clean and hopeful gloss on a system that is anything but. | |
< < | Criminal law does not reliably mete out punishments to the bad and absolve the good of blame; the justice we arrive at is, at best, rough and approximate. We can debate the values of the criminal justice system: deterrence, retribution, order. What costs have we incurred in locating morality outside of ourselves, rather than within, and placing it in an unreliable and often unpredictable system that nonetheless binds us all? | > > | Criminal law does not reliably mete out punishments to the bad and absolve the good of blame; the justice we arrive at is, at best, rough and approximate. We can debate the values of the criminal justice system: deterrence, retribution, order. What costs have we incurred in locating morality outside of ourselves, rather than within,
Where's the "rather
than-ness"? Surely there are few of us who believe that our personal
morality has been entirely deferred to the criminal law, let alone to
the criminal justice system. It's merely another, weak and barely
reliable, form of social control.
and placing it in an unreliable and often unpredictable system that nonetheless binds us all? | | Criminal Calculus
Crimes of passion aside, doing something "wrong," whether stealing a cookie from the cookie jar or millions of dollars from corporate shareholders, involves a cost-benefit analysis. How likely am I to get caught? What do I stand to gain? Does the combined pull of these two forces outweigh the punishment if I am found out? In the cookie jar scenario, the calculation is nearly instantaneous: Mom is outside + those cookies are delicious > probable scolding, possible timeout. If I steal the cookie successfully, I will likely not feel remorse. Why would I? I have not engaged in an internal debate about right and wrong; I have not pummeled my conscience into submission. Rather, I have chosen to go for the cookie jar, and unless I am caught, I win. | |
> > | But this is the thinking of an impulsive child, and has very little to do with the supposed thought process of mature people. And, despite all the love we have for simplifications, stealing from the cookie jar isn't stealing and what causes real people to commit real crimes is substantially more complicated. | | Getting Caught Makes a Wrong Real
But what if Mom walks in the kitchen and catches me? I'll feel terrible: I hate getting yelled at. My remorse comes not from within, but from an externally located rule of law--Mom's law--and the consequences of its application. The goal in raising a self-correcting child is to get that child to internalize the moral code of the parent, so good behavior comes from within rather than from a fear of getting caught. | |
> > | That's one way of
understanding the situation: morality and the way we are raised are
two working parts of a system of hegemony, designed to make us
internalize the demands of power, so that we never challenge power
externally, and our "good behavior" comes from within. This view is
widespread and I think it's disgusting. We should be trying to raise
children who are free, not internalizing voices representing others'
power, but understanding their own varying personalities in order to
behave self-expressively and with empathy, consistently, in all social
relationships. | | The Costs of Externalizing Our Conscience
Many things can go wrong in this process, and often do. We do not all emerge with a clarion conscience and a moral compass that point due north. Additionally, the thought process (assuming there is a conscious one) that transpires before committing a crime is far more complicated than the one I've outlined. But the law, in binding us all, takes on the role of the punitive parent, and creates a lapse in time between act and remorse. This remorse is something other than regret for the crime committed; it's also dismay at being caught. Getting caught completes the crime. Once the world knows and punishment looms, the actor is forced to recognize his actions and bear the consequences. The costs of this can be devastating. | |
> > | But also not, depending
on the personality structures of the individual who has been
"apprehended." You're talking about what happens to a particular
type of person raised a particular way under contingent circumstances
with certain characteristics. At that point, making it sound as
though you're observing a general social principle is a little
misleading. | | A Case Study?
In the early morning hours of October 26, 2009, Gil Cornblum jumped off a bridge. This was not his first attempt at suicide, but it was his last. Suicide is an unknowable tragedy, the world's brief and brutal glimpse at private, unplumbable depths. We can grasp (and often cling to) the how; what can we know of the why? We know, according to his wife, that Gil had struggled with depression for his whole life. We also know that Gil was under investigation for a 14-year streak of insider trading, allegedly conducted while an attorney at big name law firms in the US and Canada. His first two suicide attempts were made after the investigation began; his last was reportedly on the eve of a settlement in the criminal investigation.
Gil killed himself after he got caught. It would be facile and tidy to conclude that he killed himself because he got caught. Were we to assume a link between his alleged crime and his death, however, we would see an extreme result of the gap created by the distancing of personal morality from that contained by the law. Gil may have misunderstood himself. In evaluating the costs and benefits of his crime, he may have thought he was smart enough to avoid getting caught. He may also have miscalculated as to his own capacity for withstanding the opprobrium of detection: it's hard to imagine anyone incorporating suicide into a decision-making process and deciding to go forward with the act. My hypothesis is that Gil didn't do much thinking at all, or didn't know himself well enough to understand that he couldn't cope with his wrong made real, and therefore no benefit could possibly outweigh the cost. | |
< < | Had Gil's concept of wrong aligned with the legal one, however, he may have stayed his hand. An internal sense of wrong creates immediate consequences. When the punitive force is an external one, its actions can be long delayed. Future risk outweighed present desire, and so Gil spent his early mornings at Sullivan and Cromwell, "spleunking" for information on deals and mergers. | > > | But someone in his
position might have said to himself, I don't care whether I live or
die, so if this doesn't work and I don't get the life I want to live
I'll just kill myself, so there's no reason not to go ahead. Or
perhaps he always knew he was going to die by suicide, as some people
do, and the question was always just whether the time was
right.
But the things I most
want to know about have to do with this man's relationship to his
parents. Understanding the psychic environment he emerged from would
help frame some less general questions.
Had Gil's concept of wrong aligned with the legal one, however, he may have stayed his hand.
Once you're in the
conditional subjunctive, you might want to ask yourself whether you
are too far out on a limb. To have said he didn't think stealing was
wrong would have been an obvious oversimplification, and to say he
might not have done it if he really thought stealing was wrong is
not much of an announcement. So instead you use verb mood and tense
to create an aura of significance, with high diction standing in for
sense.
An internal sense of wrong creates immediate consequences.
I'm not sure this is
true, and it passes by pretty quickly given the work it is called
upon to deliver. My experience of people is that they are capable of
hiding an internal sense of wrong from themselves for an awfully long
time. Could you provide something here to make me a little less
skeptical? If this isn't right, your whole distinction between
morality "inside" and "outside" is kind of in
trouble....
When the punitive force is an external one, its actions can be long delayed. Future risk outweighed present desire, and so Gil spent his early mornings at Sullivan and Cromwell, "spleunking" for information on deals and mergers. | | Conclusion
Justice Black writes that "[b]ad men, like good men, are entitled to be tried and sentenced in accordance with the law." But bad men and good men don't relate to the law in the same way. A good man (and a naive one) sees in the law a reflection of what he sees within; a bad man sees a mechanism for enforcement of an arbitrary rule that can potentially be sidestepped. Gil knew what he was doing was "wrong:" hence the secrecy and subterfuge. But he didn't know it was wrong until it was too late. | |
< < |
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, CarolineFerrisWhite | > > | It's hard to believe
that you don't want to put scare quotes around "good" and "bad"
there. One might say simply that people who bring developed
capacities for empathy into all the personal and social relations
tend to see the rules as reflections of mutual respect for one
another's needs, while people who do not bring empathy to their
social relationships are likely to respond to the rules on the basis
of their own immediate or long-term interests and desires. People
radically unencumbered by empathy may be said to have narcissistic
personality disorder. They may behave sociopathically. Such people
will probably be called "bad." That word here seems to me to have a
meaning that is directly related to deficit: such people are bad at
living in social communities, which—as human beings are
biologically social—can be regarded as a form of "brokenness."
But we would then have to admit that if they are "bad," so are all
the others who are socially disabled.
But if it is their
actions that are "bad," those actions are performed also by people
who are not unencumbered by empathy. When we find harmful, injurious
deeds done to humans or some animals, and those deeds have been done
in a manner which specifically shows the absence of empathy, or the
offender shows no remorse indicative of empathy when "apprehended,"
we then tend to put the conduct in a category of special severity, or
"badness," and we either kill the person who did these deeds, or we
declare him socially dead and confine him forever where we cannot see
him and he cannot see us.
But most people who
"offend" commit all the same crimes and cause all the same horrors
without being incapable of empathy, and what they have are reasons,
justifications, feelings, conflicts, rages, and confusions. Social
control of all varieties is applied to us, and has its effects. Our
behavior is shaped by the world in which, as individuals, we live.
We also acquire psychic self-states, personae, personalities, and
they live out their lives using our brains and our bodies within the
social matrix. The interactions among those self-states, those with
whom we have relationships, and the remainder of the social world
brings about events through which we are judged either "good" or
"bad." The judgment, however, captures the least of
it. | | \ No newline at end of file |
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