What is our legal justice system for?
Our legal justice system is a bedrock institution. In any society, we make an agreement to work together and support each other. This can come with significant personal sacrifices, but with the understanding that we all ultimately benefit. Courts are a vital tool to maintain this balancing act. They protect our rights and some degree of self-determination, while also acting to protect and care for each other. When rights are infringed, it is a tool of correction. This correction can be on an individual level, where someone who has harmed another must face consequences. It can also be on societal level, where people act through courts or en masse through amendments to correct the harmful gaps and mistakes of the people who came before us.
I’m not a lawyer. I will steer away from discussing legal mechanisms or questions of law. Instead, I would like to bring out philosophical and psychological aspects. The ‘what’ and ‘how’ of the overall system. I am influenced in this by Foucault’s excellent Discipline and Punish, which is as relevant as ever. I bring a slightly different take as a behaviorist.
I’ll talk about justice at two levels: individual and social. However, I do not intend to imply these really are separate. They always interact, and really are multiple perspectives of the same thing, like a forest and its trees.
Individual legal justice
When we seek justice for a harm someone has caused, what do we mean? The Oxford English Dictionary describes a few senses: the maintenance of what is right; moral uprightness; and the executor of what is right. Executor may be apt, since justice has often been tied to execution. But ultimately, the aim is to be ethical. This brings up two important questions: who is responsible for misdeeds? and given the first answer, how can we correct misdeeds?
Who is responsible?
This may sound like an easy question. If I see someone punch another person, the puncher is responsible, right? Not necessarily. If you were the one doing the punching, you’d be sure to tell me other factors involved. Such as, what is the relationship between the people? How old is the puncher? What are they going through? What is their ability to understand what is happening? And, perhaps most crucially, what have they been taught – by family, the news, TV shows, cultural stories, etc. – about how to handle whatever triggered the punch? Based on the answers, your sense of responsibility may swing dramatically. If the puncher is 4 years old. Or was abused by the other person. Or, perhaps, was taught that this how you’re supposed to respond to what happened. Every situation has its context.
Our actions are often pulled from their context, and this is a major challenge with misbehavior. While growing up, we learn from people and cultures that themselves weren’t dealt with justly. Many enforcement policies serve to take minor, normative misbehaviors in children and turn them into major battles. Often these policies target some groups (e.g. BIPOC or LGBTQ communities) more than others. This is shown in research on the school-to-prison pipeline, drug use criminalization, etc. These policies reduce access to positive improvement and increase the likelihood of taking bigger negative reactions. More broadly, when you’re faced with a system that responds to challenges with punishment, this is how you learn to respond as well. An eye for an eye…
How to correct misdeeds?
Rewards and Punishments
The legal justice system uses operant conditioning: rewards and punishments. Right off the bat, it gets off to a poor start. The only rewards I’ve heard about are negative reinforcement: when sentences are reduced for good behavior. Otherwise, we’re only really dealing with punishment, which is a big problem. Behavioral psychologists have recognized for most of a century that effective learning comes from rewards, not punishment. It’s obvious when you look right at it: punishments can temporarily reduce doing the wrong thing, but unless the person experiences through practice how another option works better, they don’t have much choice.
Additionally, the behavior to be punished is in the past. This reminds us that punishment does not work retroactively (we cannot change the past) but only proactively (make the act less likely to occur again). This is obvious, but the implications are not. Most of the time, justice cannot truly be restorative. Even if money can be returned with expected interest, for instance, the time lost for use of that money cannot. This means that a focus on what the wrongdoer ‘deserves’ is purely about vengeance, and not justice. For whom and how does vengeance help? Vengeance is a destructive response to anger.
Recognize our own learning
If you have learned that harming someone is the appropriate way to handle anger and seek justice, then you may want to consider what that training is doing to you. Legal standing doesn’t make eye-for-an-eye punishment any more moral. For it to help, justice can only focus on building a better future: preventing further harm; teaching alternatives; and restoring what can be restored to those hurt. Too often, the justice system is designed for vengeance. For example, Malcolm X described his rehabilitation in his autobiography, but he did not learn it through the system. He learned a better path through the prosocial, organized efforts of people he met in jail and afterwards.
Our system’s poor response is not just about sentences, but also after release. Our retribution-focused policies make it harder for people coming out of prison to find work, to vote, etc., when a focus on behaviorally-sound justice says it should be easier. Again, if you are angered by the idea of rewards for someone who has done something wrong, think about where that feeling is coming from. Take a look at what has helped you do better when you do something harmful. People who have broken the law and infringed on others’ rights are still human and still suffer, just like you.
Next time we’ll look at the societal level of legal justice.
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