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Justice, What Nobody Really Wants
As some of you know, I contributed — along with Jonah Goldberg, P.J. O’Rourke, Ricochet’s own James Lileks, and a host of other writers — to The Seven Deadly Virtues: 18 Conservative Writers on Why the Virtuous Life is Funny as Hell.
(And yes, there are still lots of people who think of me as “conservative.”)
The book has garnered some really nice reviews, especially this one from Laura Vanderkam in the WSJ.
I thought I’d reprint my essay here, for Ricochet readers, and ask them for a favor in return: if you like what you see, buy the book for Jonah’s or James’ or Andy Ferguson’s contribution. Or at least head over to Amazon and vote it up. The editor, Jonathan Last, is obsessed with its Amazon rank….
Herewith, me on Justice:
Two weekends ago, on a Saturday afternoon, I made a tragic and irreversible mistake.
I went to Costco.
Which is not, of course, a mistake in general. Big warehouse stores are great places to find roast chickens, gallon drums of mayonnaise, and batteries sold by the crate. At my local Costco, I can guide a small, boat-sized trolley through the aisles and fill up on enough garbage bags, pinto beans, and multi-vitamins to last the calendar year. I love Costco so much, I often find myself yearning for the (inevitable, for Los Angeles) 7.0 earthquake—the Big One—just so I can finally make a dent in my enormous stockpiles of Ramen noodles and baby wipes.
The problem is, on a Saturday afternoon, everyone else is doing the same thing. The spaciousness of the store and its radiating vibe of plenty are ruined by all of the other people banging into you with their giant carts, or crowding around the pallet of vacuum-sealed ribs, or creating long, snake-like lines at the register. On this particular Saturday, somehow, it was worse. The place was so packed, I couldn’t even make it to the aisle where they keep the drums of ketchup.
“What did I do to deserve this?” I asked myself, as I threaded through the masses. “I guess in a previous life I must have burned down an orphanage.”
Because, you see, that’s one way of looking at the idea of justice: It’s payback for your sins.
In a previous incarnation, I suppose, I was one of those evil warlords who marauded through the Steppes. No, being a warlord is hard work, even for a previous life version of me. Maybe I was a Dickensian villain who hated orphans (“Those big eyes! Those smudgy faces! Are there no workhouses?”) and I did something truly evil—I burned down the orphanage, orphans and all!—and now the universe was getting its revenge by making me wait thirty minutes to check out of Costco. Payback received.
Justice, in this view, would be more like the ancient Vedic idea of Karma—that balancing force of nature that connects everyone to everything (and vice versa) and punishes wrongdoing in ripples that radiate through many lifetimes. It’s an irritating philosophy, obviously, because I’m almost entirely certain that any previous lives I may have had—and, for the record, I didn’t have any—weren’t spent marauding, but rather cowering in a hut somewhere wet and cold, or at the very most kneeling submissively before some psychopathic ruler while blubbering out ridiculous and desperate flattery. I mean, that’s basically what I do in this lifetime. (I work in Hollywood.)
In other words: what did I do to deserve this throng at the local Costco? And the short answer is: nothing. So if the Costco debacle was karma, then it was unfair. Unjust. All I did, really, was sleep a little too late on a Saturday morning to beat the crowds.
When seen that way, as a series of tiny, needling pinpricks—sleeping an extra hour gets you punished with a crowded warehouse store—then the exotic, incense-heavy notion of karma starts to look a little less spooky and grand. It’s not capital-J Justice. It’s karmic justice. It’s justice lite. And the punishment of karmic justice isn’t meted out over the decades and lifetimes. It happens in the here and now, probably within some sort of twenty-four hour statute of limitations.
When you get right down to it, karma isn’t such a big and complicated idea at all. Which is probably why they talk about it so much in yoga class. What’s attractive about karma, though, is that it’s automatic. Karma is an invisible balancing machine that’s always running in the background. Karma just happens.
Justice, on the other hand, needs a push. That’s why we say we’re “bringing” someone or something “to justice.” And you never, ever, say “We’re bringing that guy to karma.”
* * *
In the Asian sub-continent, where karma was invented (or discovered, depending on how you view these things), the climate is often so inhospitable that it’s no wonder they developed a vaguely mañana attitude about these kinds of things. It’s stifling hot and/or raining monsoons and there are stinging insects all over the place. You can practically hear them saying, ages ago, during the era of the Upanishads, “Let’s just let karma get that guy, okay?” Someone’s using a banana-leaf fan and they’re sitting in the hot shade and it’s all, “I am not bringing anyone to anything in this weather.”
Move a little to the west, and the culture develops a more hurry-up kind of urgency. Colder weather, perhaps, clarifies the mind. And so karma gets a little goose and the idea of “justice” takes hold. Justice is karma on a timetable. Justice is what karma becomes when a bunch of Type-A dudes get hold of it.
The problem is, justice is complicated, with lots of moving parts and a terrifying margin of error. Justice is something people do to other people, and if there’s one thing we’ve learned from history, it’s that most things people do to other people aren’t very nice. Even when—maybe especially when—they’re driven by good intentions.
* * *
“Your Honor, I have a problem,” the prospective juror said to the judge during jury selection a year or so ago. The prospective juror—just so you don’t get the wrong idea—was not me. I’m a good citizen, and a patriot, and I believe in the process—messy and flawed—of justice. So when I get a summons to appear for jury service in Los Angeles County, I obey it. (I postpone it several times, of course, and then whine about it constantly, but I do eventually show up.)
I have a wide and expressive face, one that radiates a kind of sunny fairness—you’re just going to have to take my word for that—and so I almost always make it to the jury box for the voir dire process. I usually last until I announce my occupation—I work as a television writer and producer in the entertainment industry—at which point the defense attorney thinks to himself, This guy is a pampered plutocrat who hates minorities and the underclass, and the prosecutor thinks, This guy is a guilty white liberal who thinks all defendants are innocent. And I end up excused for another two years. (Ironically, both lawyers are essentially correct.)
Last year, though, I made it through a couple of rounds. The prospective juror to my left—female, 30s, expensive watch, Kate Spade tote—squirmed nervously as it became clear that the jury selection process was winding to a close and that she was going to be on it. So she raised her hand in a desperate gambit to get out.
“Your Honor, I have a problem.”
Her problem, she told the judge, was that the defendant in the trial—it was an assault case, and a pretty serious one—had come to court in his prison jumpsuit. He was surrounded by people in suits and court uniforms and here he was, the unfortunate, in a costume that screamed “Guilty!”
“How can I be impartial when I keep seeing him in that outfit, like he’s already guilty?” she asked.
The judge explained, carefully, that each defendant in the hot and dusty County of Los Angeles has the right to appear in court wearing pretty much whatever. The defendant could have worn a suit. He could have worn a scuba outfit. He chose, probably on the advice of counsel, to wear his orange prison overalls.
“But why would he do that?” she asked.
“Well,” the judge said carefully, “that’s what we’re going to find out during the trial, right? What his story is.”
She shook her head. “I just can’t see him impartially,” she said. “Not in that outfit.”
The judge looked annoyed. “Justice, ma’am,” he said, pointing to the Great Seal of the Los Angeles County Courts, with a depiction of Lady Justice, the Greek goddess of Themis, who holds up the scales with her eyes blindfolded, “is blind.”
“Yeah,” she said. “But I’m not.”
And with that, she was excused from jury service.
“Nice one,” I whispered to her as she shuffled past me. She shot me a dirty look.
* * *
Justice may be blind, but we aren’t. We are very much sighted. We see the assault and battery defendant in the orange jumpsuit. We see the insider trading defendant in the $530 Brioni T-shirt. We notice when class and status get dragged in irons to the dock, and it’s hard not to think, Okay, maybe he’s innocent of that specific charge, but the guy is clearly a bastard. He’s guilty. Of something, anyway. We may have a goddess as a symbol, but justice is a human sport.
Interestingly, the supernatural word doesn’t need a system of justice. Vampires, for all of their seductive power, can’t really bend the rules: The sun comes up and they die. Shoot a werewolf with a silver bullet and that’s that. No litigation necessary, or even possible. It’s only humans, with their endless capacity to whine and beg and wheedle and wiggle out of commitments, who need an institutional mechanism for justice and law enforcement. Everyone and everything else just sucks it up.
During the economic meltdown of 2008-2009, when the financial bubble inflated by mortgage-backed securities collapsed in a pile of bank failings and taxpayer-supported bailouts, some financial masterminds suggested a unique way to reform the financial oversight bureaucracy: abolish most of the financial institution regulatory mechanisms and replace them with a simple agreement. Take the top 5 percent of the employees of any bank or financial institution that does business in the United States and make them pledge 99.9 percent of their net worth towards any future settlement or bailout which the federal government (i.e., the American taxpayer) is obliged to cough up in case of their failure.
The bailout would naturally exceed the amounts collected, of course, but it would be fun to see high-flying investment bank vice presidents tooling around town in Hyundais and Kias rather than BMWs and Bentleys.
It would be immensely satisfying to watch the 1 percent trade summers on Nantucket for summers around the backyard above-ground pool, in a neighborhood without a Whole Foods or really good sushi. Would it compensate the taxpayers? Oh no. Not by a long shot. But boy would it hurt the investment bankers. And maybe that’s enough. The idea behind the proposal, though, is that the automatic karmic punishment would be so unthinkably painful—“Tristan? Sophie? I have some bad news. Tristan, you’re not going back to Andover next year, you’re going to George Washington Carver High. Sophie, you can’t take that unpaid internship, you’re going to work at Quizno’s with baggies on your hands”—that it would create its own kind of powerful regulatory oversight. Don’t want to slip down the class ladder? Then maybe you’d better run the numbers again on that risk-blind derivative of a Class B tranche of mortgage-backed securities you’ve just option-swapped.
* * *
We’re supposed to be talking about justice, of course. Yet why is it that we always seem to end up talking about punishment?
For the record, the defendant in the orange jumpsuit was clearly guilty. He didn’t really contest the issue in the ensuing trial, which I couldn’t evade. What he wanted, it seemed, was to be seen as someone who had already served some time in prison—hence the strategic choice of wardrobe—in order to appeal for leniency. Which he didn’t get.
When we talked about it in the jury room—and here, I hope, I’m not breaking the law—there was lots of talk about “time served,” but also lots of talk about “sending a message” and “getting tough” and “making sure the punishment fits the crime.” It turns out that a randomly-assembled group of Los Angeles County voters—minus the subset of thirtysomething females with Kate Spade totes—can’t exactly be Blind Justice Holding the Scales, but they can, in a disorganized and rambling way, get to the point and come up with a reasonable, though imperfect, way of dealing with a defendant in an orange jumpsuit who beat up his girlfriend.
I held that last detail back, did you notice? And did you also notice that the minute you read that final clause—“beat up his girlfriend”—the whole story seemed different? Justice may be blind, but we’re not.
When you know what he did, you want to throw the book at him. For something, anyway. When you know how he assaulted his girlfriend—and, as jurors, we knew; we saw the emergency room photographs, which were catch-your-breath shocking—you’re not going to let him walk. You’re going to bring him to justice, even if he’d already served some time, even if he was “deeply committed to anger-management counseling,” according to his lawyer. Even if he had already lost his job and (in a detail that was never explained to us) his car, as well.
What we talked about in the jury room, then, wasn’t really justice. It wasn’t guilt or innocence. In most trials, that’s already pretty much decided. No, what we balanced, not so blindly, was punishment. We didn’t discuss the fairness of the process or social inequality or the state of the public schools or cultural differences. We talked punishment, as in: If we find him guilty of this or that charge, in this or that degree, what’s the guy going to get? To the extent that a jury has an ability to influence or shape the punishment, that’s what we focused on. Not justice, really, but whether this guy would get punished harshly enough to deter him from doing this again but not so harshly that he never gets out from under the cloud of the conviction.
The scales of justice, which are supposed to balance the evidence of guilt or innocence, really end up balancing something more personal and human: revenge and mercy. Well, maybe “revenge” isn’t quite right. (Though it’s not quite wrong, either.) When business pundits and L.A. jurors sit around trying to sort things out, it’s hard for them to totally ignore the devil on their shoulders urging them to make this guy pay. Justice is something people do to other people, often with a vengeance. It’s measured not in time served or fines paid but in the sting of the punishment, the pain of the sentence.
Justice—to be truly satisfying—has to hurt. Which is why, I think, justice is something we prefer to mete out rather than to receive. And why, I think, the groovy, loosey-goosey, super-chill vibe of karma is so appealing. It’s the universe, man. Not a bunch of harried and pre-occupied strangers in a drab jury room trying to sort out big issues. But the universe has no appeals process. You can’t ask karma for a second chance. You can’t explain yourself to the cosmic balancing system and ask for a little wiggle room. You sleep late on a Saturday and Costco is going to be hell.
* * *
What we’re all looking for—even as we devise more draconian and painful punishments for our fellow man—is a little mercy. Justice we’ve got. Justice comes in Great Floods and firestorms over Sodom and Gomorrah and fifteen-to-twenty with no parole. Justice—and even low-calorie karma—can seem awfully cruel, even when they’re both about as fair and dispassionate as possible.
It’s not hard, then, to see how the simple message of a Jewish carpenter in Nazareth became so popular. Jesus didn’t talk much about justice. He talked about mercy. He talked about forgiveness. As his followers see it, Jesus is the Chief Justice of the Court of Appeals, Universal Circuit. And he’s a pretty lenient jurist.
There are constellations of theology going on here, with tangles of writings and memoirs and Lives of Saints spanning two thousand years of debate about God’s mercy tempered with His Justice. But when you hear a gospel group sing “Jesus Dropped the Charges,” it all kind of clicks into place.
“I was guilty,” they sing, “Of all the charges:”
doomed and disgraced,
but Jesus,
with His special love,
saved me by His grace;
He pleaded And He pleaded He pleaded my case.
Jesus dropped the charges,
Jesus dropped the charges,
At Calvary I heard Him say,
At Calvary I heard Him say,
At Calvary I heard Him say,
case dismissed, case dismissed . . .
It may be hokey, but it’s also a lot truer than most things we pretend to think about justice and fairness. We’re not really looking for balanced scales, or blindness. Oh, yes, maybe that’s what we think is right for the other guy, but what we really want to hear—when we spend a night totaling up our transgressions and petty actions and lies large and small—is forgiveness. To hear “case dismissed.” To walk out of the courtroom of life a free man, touched not by justice but by mercy.
To sleep as late as we like and glide though a near-empty Costco.
Published in General
You’re assuming a lot about the rest of us. I want justice, but I don’t interpret it as how I think the outcome should be, I interpret as just deserts; you get what you earn. Justice and fairness or mercy are not even remotely related.
Though “What man who has lived for more than a score of years desires justice, warrior? For my part, I find mercy infinitely more attractive.”
Roger Zelazny “Lord of Light.”
I want justice, not mercy, if I burn in the pits of hell for it.
“
What we’re really talking about is: Is justice revenge? Only in the sense that you get revenge through justice. What justice is is the result of what comes of you for what you have done. Or what becomes of someone else for what they have done. The interpretation of Justice can be just as damning as the act of injustice itself. It depends on who gets to decide.
Yes, I think most people would prefer mercy (or at least a plea bargain) to justice for themselves. Karma doesn’t have that option – only actions and outcomes count, intentions are just thoughts.
Justice is what you deserve.
Mercy is what you don’t deserve.
Grace is what you can’t deserve.
Odd timing. I post a Kipling poem every other day.
Yesterday’s, The Ballad of Minepit Shaw, considered the difference between justice and mercy.
Seawriter
I read this through a cold medicine induced haze, so my thoughts are more scattered than usual. However, I was delighted with the memory of a gospel song locked deep in my brain.
Also, I’m not one to argue theology or philosophy, but I will say that I will take grace and mercy over justice any day. I know what lurks deep inside of me. My dad told me one time that the problem with my having an instinct about what makes people tick is that I know exactly where to stick the knife and how hard to twist it–in his defense, he was right and I was a smug 18 year old. So, again, I’ll take mercy and grace.
Lastly, Rob, I can’t remember when, but back in the early podcast days, you and Peter had a conversation (maybe he was recalling how much his boys enjoyed a dinner with you one summer?). One of you referred to how Peter believed that you were always redeemable. Reading this gives me a little glimpse into how he supports his belief.
Thanks for the post..will definitely buy the book.
But most of them are not Ricochet members. ;-)
Great post Rob, but in the podcast about this book you guys never did say why Owen Wilson is on your cover?
I guess my upbringing and life experiences are different. First, I have served on three juries and was pleasantly surprised in all three instances that everybody followed the judge’s admonition to base the judgement on the evidence. Maybe in some minds there was a notion of revenge or mercy, but we did our duty IMO.
Second, and as my Mom said to me many times, true justice occurs in the afterlife. However, in this world there must be a mechanism of accountability. Daily we curse the DC rulers, the terrorists and their leaders and the countries which support them, incompetent and/or crooked bureaucrats, on down to the common criminal. Ultimately we become so frustrated at the lack of justice, i.e., accountability, that we do get into the revenge (or retribution – is there a difference?) mode.
Third, as Gen. Patton said, the punishment resulting from the judgement is not for the perpetrator, but for the rest of us. Lack of adherence to laws and social norms by not establishing some consequence to bad behavior results in the potential for further moral decline in the populace.
So, yes, I do want justice because accountability, at least in this world, shouldn’t depend on having a bad karma day.
I think it’s a little odd that you guys were deciding punishment as jurors… California is a strange place. That, or you’re paraphrasing what was actually a somewhat more complicated decision. ;)
I wrote this a few days ago, and it flew through the member feed at a lightning pace.
The concept of justice really must depend on your idea of truth. Justice may simply mean “equality,” in the Newtonian sense that for every action there is an equal and opposite reaction. If you work $2 worth of hard, getting $1 would be unjust, as would be getting $3. Of course, human justice is nonsense, which is why lawyers exist. If you don’t work hard, but what you do has great impact, what then? If you work extremely hard and fail, you get nothing. If you poke a man in the chest but that kills him, the eggshell doctrine holds you accountable for the actual consequences and not just the intended or expected ones.
Interestingly, the typical atheist complaint about Christianity is that it is painfully unjust. We don’t exactly see it that way, which (in my opinion) is why we tend to be conservatives. We look at a somewhat bigger picture. If a child is killed by a dictator, that specific result is certainly unfair – but when a nation suffers for its embrace of tyranny, there is justice on a larger scale. It is unjust that my health insurance should get cancelled when I voted for McCain in 2008; but the country’s health system may crumble because of national decisions – which is just.
Too often, we do mistake fairness for justice. True justice requires 2 things: it requires perfect knowledge; but it also requires a perfect system. That cannot exist in this world, which is why we never really can claim to have achieved it. We can only ever come close by doing our best; but inevitably, injustice occurs and is latched onto by those who want to tear down or change the system. It gave us Obama in 2008-20012, did it not? That too many voters believed (incorrectly, in my view) that this was necessary for justice. And what they got was justice… Just not the justice they wanted or believed in.
None is qualified to dispense justice for none has ever received it in full.
Thanks for the entertaining and interesting essay Rob. I will buy the book for more hours of fun and wisdom.
My husband was foreman of a jury a few years ago where the drug smuggler was obviously guilty, though one juror refused to go along. She had determined his innocence by opening her Bible at random and putting her finger on a scripture that she interpreted as evidence that he was innocent. The guy got off. So I guess his belief that justice is for everyone else was vindicated. He was a stupid kid from a good family though, so we hope he chose to fly right after the scare.
I noticed Owen Wilson too!
The phrase “Social Justice” makes a lot more sense and its intent more accurately described if you substitute Revenge for Justice.
I actually disagree with the fundamental premise. I think we do want justice, even for ourselves. But also mercy. Yes, it’s quite a tangle. The problem with just skipping straight to mercy, though, is that it basically presumes that your flawed self is your real self; you’re not capable of doing better. And even while hoping to be “let off”, most of us don’t really want to believe that.
Catholics actually give both justice and mercy their due place, with confession (you have to own up to what you did) but then absolution (God forgives you, though you’re expected to do penance and show remorse) and with Purgatory (work off those sins!) followed by Paradise. I think it’s a pretty satisfying set-up, though obviously I’m biased here.
People today are too willing to let justice go in favor of mercy, and the end result is that most people have a lot of guilt rolling around their subconscious that they don’t know how to deal with, which in turn makes it hard to believe seriously in heaven. Paradise just seems fanciful if you don’t take sin seriously. It’s too obvious that none of us deserve it and the whole concept comes across as kind of a joke. “Catholic guilt” stereotypes notwithstanding, I actually believe that serious Catholics are some of the least guilt-ridden people I know, because our faith gives us such good, down-to-earth methods for dealing with the seemingly-contradictory desires to be treated fairly, and to be treated mercifully.
Anyway, good job, Rob. You persuaded me to buy the book.
In this world Justice is aspirational, but no less essential for that.
If society does not try to impose justice on those who commit wrongs, civilization will not survive.
I would suggest that justice is different from revenge. Consider punishing a beloved child for misbehavior. You don’t impose punishment as revenge, but as a way to mold the child’s character, and to discourage that child and his siblings, if any, from future transgressions.
Likewise, a judge or jury can impose “justice” on a criminal as revenge, which would be appropriate for someone like the Boston bomber. But “justice” can also be imposed as a way to teach the culprit the error of his ways and to deter him and others from doing the same.
I think “Jesus Dropped the Charges” is poor theology.
G-d’s justice is perfect. No guilty offender will escape judgement and justice.
However, in His mercy, He crafted His perfect law with an odd provision. Sin can be atoned for by a substitute. The scapegoat symbolized the transfer of guilt to the substitute.
Then He sent that part of Himself that He calls His Son to become a perfect man, and give Himself up as the perfect substitute. In His mercy, He took on our sentence of death for our sin, and died in our place.
Rather than charges dropped, the ruling is “sentence served.”
Hmmm. Paywall. Well, if Laura Vanderkam likes it, it must be good. I have her wonderful audiobook Something Blah Blah Breakfast. I could listen to her read the phone book.
I had the same thought.
Here is what you do with a WSJ paywall piece:
It works with search engines that allow tracking, but not anonymising search engines like Duck Duck Go. That means WSJ knows about it, and is allowing it.
Seawriter
Enjoyed the essay. Look forward to reading the book.
I’m likewise eager to hear why Owen Wilson is the angel. But is that also Tim Curry as the devil?
God’s gift to Twitter, David “Iowahawk” Burge, also contributed an essay.
Why has he never been a guest on the Ricochet podcast?
If I had been the editor, I would have only changed two words: “vice president”. “Managing director” is what Rob was going for. A vice president is a peon in the investment banking world – someone just starting his or her career.