You've got to go there to come back: Legal discussions part 1
I had an interesting discussion with a friend of mine a few nights ago about the nature of the criminal justice system (a conversation we had started about one year ago and only just picked up again)In so doing, we also succesfully disproved the theory that legal issues cannot be adequately discussed under the influence of alcohol. Infact, it appears to me that said drink may be essential but that's something that is outside the scope of the post. My friend is also a lawyer and is set for great things.
My arguments-which she challenged in a very spirited manner throughout- were a) Criminal justice systems all over the world are founded on the concept of punishment as retribution for crimes and b) Most of the time, our definition of what constitutes crime is based on a very deep, innate response to actions that violate societal norms. We like to think of the justice system as sophisticated and nuanced but more often than not, it represents society's views on the issues (She was skeptical about this) and again more often than not, those views are nowhere near sophisticated. Indeed, some of those views are basically unchanged since the days we were pottering around in caves trying to sort out that whole fire thingy. Our debate veered off in several different directions- one thread of the discussion was whether the justice system reflected society desires or whether it was the other way round- but it kept coming back to several points- retribution and how crimes are designated and why others are more 'immoral' than others.
Basically although we liked to think of ourselves as nuanced sophisticated societes, our reactions quite often betray a reliance on deeply-ingrained ideas and beliefs which society has held for centuries. Our views when it comes to crime are basically atavistic and usually our ideas of what was morally wrong were tied up with this.
We argued over various crimes. Murder was fairly obvious, but others were a lot less so. What about prostitution for example? I argued that societies had evolved to regard sexual intercourse as strictly for reproduction. The extension of this was that sex was idealized and put on a pedestal-something beautiful and pure done between man and wife behind closed doors. What prostitutes are doing is violating this on two counts: One, they are intentionally choosing non-reproductive sex and two, they are degrading the idealistic notion of sex by accepting money in exchange. In this sense, society is reacting exactly the way our ancestors would have reacted hundreds of years ago- with outrage that sex is being 'devalued.'
White-collar crime was a lot trickier as we tried to work our way around it to see if it would fit the framework. She said she couldnt see how it could possibly fit into the model we had discussed of retribution for violating revered societal norms. How can we summon moral outrage about say, the Enron affair? My opinion was that it fit the model. In the olden days, I think fairness was essential to keep the group together. You hunted together, raided together and accumulated whatever wealth you could get together. However you had to play by the rules because if people didn't do so and simply did their own thing, chaos would result and once it was every man for himself the group- be it clan, tribe or whatever- would splinter. The Enron guys are the guys who broke that unwritten pact- trying to get rich by breaking the rules of fairness. It strikes very hard at our deeply-held ideas of egalitarianism. I'm sure I'm not the only one who had that instinctive outrage when the story broke in the media-'Its not fair!' I think that kind of reaction made evolutionary sense. My friend discussed whether the 'fairness' doctrine was sufficient enough to account for instinctive outrage to white-collar crime. Where do you draw the line? Where does it become 'unfair'? Could you really prove we are reacting in an atavistic fashion?
She was convinced the model had severe limitations once you tried to apply it to different crimes. What about traffic violations? She queried, surely we cant have any base instincts that make us demand these to be crimes? Aside from the fact that this could lead to dead people obviously.
Again maybe you can look at it from an evolutionary point of view- maybe its about order because obviously people can't be allowed to do what they want. The difference today is that this desire for order and the revulsion to chaos extends to things like our transportation. Stringent traffic rules could make sense if seen as a sort of attempt to crystallize order as the driving(pardon the pun)force behind the success and 'make-up' of our society and if we have evolved to consider order as so crucial, is it any wonder that we have that instinctive reaction to people who break traffic rules-or any other rules we think are important for the overall wellbeing of society?
And then we drank some more beer.
My arguments-which she challenged in a very spirited manner throughout- were a) Criminal justice systems all over the world are founded on the concept of punishment as retribution for crimes and b) Most of the time, our definition of what constitutes crime is based on a very deep, innate response to actions that violate societal norms. We like to think of the justice system as sophisticated and nuanced but more often than not, it represents society's views on the issues (She was skeptical about this) and again more often than not, those views are nowhere near sophisticated. Indeed, some of those views are basically unchanged since the days we were pottering around in caves trying to sort out that whole fire thingy. Our debate veered off in several different directions- one thread of the discussion was whether the justice system reflected society desires or whether it was the other way round- but it kept coming back to several points- retribution and how crimes are designated and why others are more 'immoral' than others.
Basically although we liked to think of ourselves as nuanced sophisticated societes, our reactions quite often betray a reliance on deeply-ingrained ideas and beliefs which society has held for centuries. Our views when it comes to crime are basically atavistic and usually our ideas of what was morally wrong were tied up with this.
We argued over various crimes. Murder was fairly obvious, but others were a lot less so. What about prostitution for example? I argued that societies had evolved to regard sexual intercourse as strictly for reproduction. The extension of this was that sex was idealized and put on a pedestal-something beautiful and pure done between man and wife behind closed doors. What prostitutes are doing is violating this on two counts: One, they are intentionally choosing non-reproductive sex and two, they are degrading the idealistic notion of sex by accepting money in exchange. In this sense, society is reacting exactly the way our ancestors would have reacted hundreds of years ago- with outrage that sex is being 'devalued.'
White-collar crime was a lot trickier as we tried to work our way around it to see if it would fit the framework. She said she couldnt see how it could possibly fit into the model we had discussed of retribution for violating revered societal norms. How can we summon moral outrage about say, the Enron affair? My opinion was that it fit the model. In the olden days, I think fairness was essential to keep the group together. You hunted together, raided together and accumulated whatever wealth you could get together. However you had to play by the rules because if people didn't do so and simply did their own thing, chaos would result and once it was every man for himself the group- be it clan, tribe or whatever- would splinter. The Enron guys are the guys who broke that unwritten pact- trying to get rich by breaking the rules of fairness. It strikes very hard at our deeply-held ideas of egalitarianism. I'm sure I'm not the only one who had that instinctive outrage when the story broke in the media-'Its not fair!' I think that kind of reaction made evolutionary sense. My friend discussed whether the 'fairness' doctrine was sufficient enough to account for instinctive outrage to white-collar crime. Where do you draw the line? Where does it become 'unfair'? Could you really prove we are reacting in an atavistic fashion?
She was convinced the model had severe limitations once you tried to apply it to different crimes. What about traffic violations? She queried, surely we cant have any base instincts that make us demand these to be crimes? Aside from the fact that this could lead to dead people obviously.
Again maybe you can look at it from an evolutionary point of view- maybe its about order because obviously people can't be allowed to do what they want. The difference today is that this desire for order and the revulsion to chaos extends to things like our transportation. Stringent traffic rules could make sense if seen as a sort of attempt to crystallize order as the driving(pardon the pun)force behind the success and 'make-up' of our society and if we have evolved to consider order as so crucial, is it any wonder that we have that instinctive reaction to people who break traffic rules-or any other rules we think are important for the overall wellbeing of society?
And then we drank some more beer.
posted by Minzo at 3:31 AM
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