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| | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
| | -- By DanKarmel - 26 Feb 2010 |
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> | Moral Assumptions in the Law |
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> | Our justice system is more than carelessly replete with moral phraseology. It is, at its most basic levels, built upon assumptions of morality. We throw around phrases like "good man" and "black hat" with a tone of irony, but such language reflects the truth about the way most of us view criminal justice. |
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> | Granted, most people understand that these labels are not entirely binary. We talk of shades of gray and "hating the crime not the man." These are modest acknowledgments of the absurdity of reducing human beings to these labels. However, they muddle an even more important assumption. When we punish someone, in the criminal system or otherwise, there is a core and necessary belief of culpability. |
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> | The Myth of Moral Culpability |
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> | Is culpability a myth? At best, it is exaggerated. Holmes touches upon this is The Path of the Law, when he writes, "If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be god rid of; he cannot be improved, or frightened out of his structural reaction." Page 11. Though he attributes this idea to "men of science," there is reason to believe that he himself holds such a view. In the process of criticizing the second fallacy of the law, namely that logic is the only force within it, he concedes that "in the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason." Page 7. As I understand it, Holmes is conceding that law, like anything else in the universe, must be some combination of inevitable logic and unpredictable randomness. The fallacy of logic in the law is that we assume the law is logically deduced from inherent universal principles that hold some sort of normative value; that the logic of the law is anything more than the logic of where stones lie in a ravine. |
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> | Free Will |
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> | This view of the universe is relevant to culpability because it leaves no room for free will. Free will is a logically incoherent notion; cause and random effect; controlled contingency. However, the debate over free will goes beyond the present purpose and is not entirely necessary. It is enough to acknowledge that we are products of many influences beyond our control, whether they are "nature" or "nurture," and that we are to a large degree not responsible for who we are. How do these concessions affect our assumptions of moral culpability? To the extent that we accept that a murderer never had the choice to abstain from his crime any more than we had the choice to commit it, does that mean we ought not punish? |
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> | The Right to Punish |
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> | We all want to say that of course we can punish. Who would suggest that society take no action against any murderer? Thomas Hobbes wrote, "[B]y the right of nature, we destroy (without being unjust) all that is noxious, both beasts and men . . . justly, when we do it in order to our preservation." In Hobbes' view then, punishment is simply part of an extensive and transitive system of self-defense. Of course, the "right of nature" from which Hobbes draws his authority is only another way of saying "completely unsubstantiated," so we must decide on our own if this true. |
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> | Most of agree that you have a right to defend yourself against an unjustified attacker. But the analogy doesn't work unless you can figure out who is doing the attacking. If we accept, to enough of a degree, that we are not responsible for our own character and thus our own actions, then the problem is less like a murderer attacking an innocent person and more like a sinking ship without enough vests. There are two people on the boat and one vest - is the first person to take the vest a murderer? |
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> | Someone should take the vest, but not because that person is "good" and certainly not because they have a "right of nature." If someone doesn't take the vest then they will both drown. I do not believe that our society is a sinking ship, but it does have serious problems, and most importantly it doesn't provide everyone with what they need to stay afloat. So who gets the vests? |
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> | Is the Criminal Justice System Justified? |
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> | Perhaps it is easy for me to say, but the criminal justice system needs to punish criminals. It is not just a matter of the people in power choosing to save themselves. To simply eradicate the justice system would, as far as I can tell, lead to chaos and destroy society. Even if a murderer cannot be held morally culpable, he must be held legally responsible; not only for the "good of society," but for its continued existence. |
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> | The problem is that maintaining these assumptions of good people and black hats allows us to ignore that to a large extent it is a system of lottery winners and losers. Acknowledging that we are all products of a society does not mean that we cannot subject criminals to the justice system. However, perhaps by being aware of the role we collectively play in the crimes committed in our society, we can refocus our efforts on creating conditions which minimize the need for this system of self-defense. |
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |