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Law in Contemporary Society
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Prisons-- By LeylaHadi - 08 Apr 2013DeterrenceThere is a running theme this semester, it seems, that is, the purpose of the law. But that is too broad a concept; the purpose of a law depends on the particular law. For example, I suppose the law against operating a vehicle while under the influence exists to establish that the state officially condemns the act, in hopes of preventing drunk driving. But a part of this law is the punishment, the axe that compels us to adhere to the rule. What is the purpose of this punishment for this law? To deter others from driving under the influence? As a form of retribution to the particular driver? But retribution for what exactly? What real evil has the drunk driver committed when he's tailed and stopped by a police officer? He drank and drove, which doesn't necessarily show that he is evil or in need of retribution. Is it, then, to prevent a possible harm from occurring if he is allowed to continue drinking and driving? Well, no, because a police officer need only put him in the back of his car and take him home. So, continuing with this particular situation, the purpose of punishing a drunk driver who has yet to actually harm anybody should not be retributive, if retribution is based on the moral right, and what is deserved. It must be, then, to make an example out of this particular drunk. Society has been warned that if they drink and drive (and are caught), they will pay. If they do it more than once, they will pay in more ways than one.If you don't punish the drunk driver who is caught before there is an accident, for what will you punish the one whose conduct results in an accident claiming lives? Is he punished for being unlucky? Is preventing those who drive drunk from driving punishment? Or is it prevention with negative personal consequences? Perhaps the problem with the conversation is the analytical categories, which prevent us from addressing clearly enough the range of social motivations and the nature of the collective behaviors we adopt. EvictionTake a different criminal law though: larceny.This sentence doesn't do the job of explaining to the reader the structure of the argument she is following.The purpose of the rule against stealing from others is, again, to establish that the state condemns taking another person's property without consent, to prevent theft from happening. But if the law did not exist, and the government did not condemn larceny in some overtly dog-eat-dog world, I don't think it is clear that people would steal more, or that more people would steal. Why is that not clear? Is the evidence inconclusive? What we observe about looting, banditry, "ethnic cleansing" and so on in times of civil disturbance, cross-culturally, seems pretty suggestive. Events occurring in Indian history (to take one possible locale among many) in 1857 and 1947 seem also to confirm the principle.Society would have some sort of unwritten understanding not to take other people's things, thus pretty much having the same people steal for the same reasons, regardless of the nonexistence of the law. They would still suffer condemnation from society, they would still become outcasts, except they would not be behind bars. So here, then, is the purpose of the punishment for larceny to rid society of thieves? And why is that ok, and why is it that the people who get to decide get to decide, and does it actually accomplish anything? Surely it would be right to say that societies that have satisfactorily subjected themselves to the rule of law achieve on the whole very much higher levels of protection of property from force and fraud, private and public, than those that haven't. The property of the rich is always better protected than the property of the poor, but it is hard to name a society with weak commitment to the rule of law in which the property of the poor is as well protected as it is in the most oppressive and grasping society performing the rule of law, which is probably our own. Making theft illegal is what makes public corruption illegal, which restrains the power that most pitilessly plunders the poor. CagesDuring my third year at Cornell, when a string of suicides occurred, the administration decided to put up large fences all across the bridges. Without saying what I think about the fences ability to deter death, I can say this was no solution to the actual problem, what actually compelled students to take their own life.Cornell puts up fences at the gorges not to prevent suicide, but to prevent suicide in a fashion distinctive to Cornell. You are correct that stopping gorge-jumping doesn't prevent suicide. But it prevents suicide from dramatizing itself at Cornell in a fashion bad for the reputation of the institution. Cornell cannot come to be the capital of romantic suicidalism. The gorges cannot become primarily symbols of Keatsian half in love with easeful deathishness. So they put up fences to prevent the creation of an association of ideas, and take them down again after half a generation to prevent the fences themselves from coming to suggest suicide. Until the next rash of jumpers, and so on. Tristram Shandy would appreciate the Lockeian irony of it all.Isn't this just a small representation of how society deals with most of the unpleasant parts of humanity? Throwing them inside a cage instead of dealing with the source. Throw a kid into prison for possessing marijuana, taking away his opportunity for education, for livelihood, for freedom; for harming nobody, except possibly themselves. If the point is to prevent the kid from being harmed, then throwing him into jail sure as hell isn't going to help that goal. Which everybody understands. Would it not be right to say, however, that the motive for arresting is making the numbers, while the motive for searching was to check for weapons, incidental to which the drugs turned up, allowing the arresting officer to make a number? That in fact this, like other decisions about what to charge and how to dispose, are affected by a variety of "incidental" factors, arising themselves in sequences of quite separate social actions, that can't be accounted for on the basis of any specific social policy towards particular offenders or offenses? Modeling what happens on the basis of what we expect to happen is a particular failure of lawyers, whose interest is in power rather than public administration.But what exactly do these realizations accomplish? Punishment is the institution, rehabilitation the naive dream. What can I do to change that? Do I want to do something to change that? Either way, once I decide, I should be able to pursue it, be able to have the knowledge, skills, and network to shake up the system. Otherwise, I am just putting myself in another form of prison. It does not follow, analytically, that not to be shaking up the system is to be in another form of prison. Indeed, perhaps shaking up the system is another form of prison, less easily escaped once entered. In any event, I'm not sure that the conclusion has anything much to do with the preceding ideas. Perhaps another look at the outline, to define clearly what you want the essay to do, is the first step in improving the draft. I think the present three stages are less well integrated than the could be, because the strategy of explication is unclear. You want to say something about the logic of punishment as a part of social order-keeping, I think. This is indeed a tricky subject, right at the heart of matters, where justice and injustice are both forged. It's necessary to be very precise. I think you need to state your own ideas clearly, through explicit statement followed by illustration. 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. To restrict access to your paper simply delete the "#" character on the next two lines:
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