In light of today's discussions in class, it seems that many people, including myself, are hesitant to concede our judicial system as being completely unfair, or completely in the hands of chance. In order to shed more light on that position, I was thinking about experiences that both myself and others have had with the law, and more particularly, the judicial system. It just so happens that I know two people who are equal in many respects; both graduated from Rhodes last year, both are going to medical school, both white, both highly intelligent, both fairly wealthy, and both were caught drinking and driving. The interactions with the law were fairly similar, until it was time to get out of jail the morning after. At this point, chance has it that one, we will call him Bob, got a hold of his parents and let them know what was happening, and they proceeded to tell him that he was on his own and to figure it out. The other, Shelly, called her parents and explained the situation and was bailed out with a fine lawyer at her side in a couple of hours. While Bob was waiting in the cell without another call, his friends were banding together to try to come up with the bail money, but they failed, so he posted using a bail bondsman, and then found the cheapest lawyer he could. This is the point at which their entrances into the judicial systems split, Shelly's lawyer knew the judges, the prosecutors, and knew the law, Bob's lawyer was an idiot and a cheat and lied to Bob and stole his money. Shelly got a small fine, lost her license for a week, and had everything expunged from her record. Bob is still without license, has a permanent mark on his record (which hurts his chance at Med school) and has paid more than Shelly has in total. To boot, they both blew a comparable BAC's, and generally posed the same threat on the road. It merely happened, by chance, that Bob's parents were disposed to reject their son's distressed state while Shelly's parents did the opposite. Perhaps his parents had just been in a fight, or had a bad day at work, yet all it took was that rejection to cast an entirely different fate for persons in the same circumstances. Likewise, it is not hard to imagine that the oppressed minority of America who cannot afford the lawyer up front (or do not know the importance of doing so) end up in the same situation as Bob. It is obviously unfair, and possibly due to chance, so where does the system actually lie? Can we say that is was not mere chance that Bob got the harsher penalty for the same offense, or that on average black people are incarcerated at a higher rate than white people for the same charges (so for every 10 white people charge with something, 5 get off, whereas only 2 black people get off-not actual statistics, just for example). How far does chance go, can we really proclaim an ability to control chance, and would that be any different than the Babylonian lottery?
Monday, August 31, 2009
Chance
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Excellent question, Walter. I think when we claim that a system is "just" (and even more so when we say it is "fair") at least part of what we mean by that is that there are rules and that those rules are evenly and impartially applied. Rules that permit "exceptions," after all, aren't really rules. And when we encounter a system in which exceptions to the rule are widespread, we tend to call that system "unjust" and "unfair." It doesn't matter whether or not those exceptions are the result of malicious intent, chance, or privilege.
ReplyDeleteThe interesting question that Borges' story raises is whether or not ANY exceptions (even one) make a rule-based system unjust or unfair. So, in the case of your friend(s), we might ask whether or not if even one person escapes the rules, or has the rules impartially appliwed to him or her, then the whole system is compromised, because it permits unpredictable, exceptional cases. So, one may have serious reservations about the "rules" of the lottery (which are entirely about chance), but there is at least the consolation that those rules are never broken, which is why the Lottery is perhaps the most "fair" system imaginable.
The question, then, becomes whether or not we can philosophically separate "justice" from "fairness."
The slippery slope is a logical fallacy. If one individual slips through the cracks of the legal system, that does not doom the entire process. Effectively what you seem to be arguing, Dr. Johnson, is that if one murderer is wrongly acquitted, then the system is a total failure and should be abandoned. I disagree
ReplyDeleteWe don't have to achieve absolute fairness in order to be just; and if "complete fairness" is only achievable through a system of chance, then maybe it is not desirable
@Thomas:
ReplyDeleteYou're right, the slippery slope is a logical fallacy, but not one that I am using in this argument. That is to say, I am not arguing that IF we allow *one* exception THEN we are doomed to inevitably allow more (or all) exceptions... but rather I am arguing that we need to consider the structural compromise that we have permitted in any system of justice (or fairness) that allows for "exceptions to the rule." In such cases, the structural compromise is to the very definition of a "rule," which (as I suggested above) makes the rule something other than a "rule."
Imagine this: Suppose I make up a game and I inform the players in advance of the rules of the game, but I do not inform them that sometimes the rules will have "exceptions" (nor do I inform them that those "exceptions" will not themselves follow some rule-based order). It is not hard to predict, in such a case, that the players will soon object to the "fairness" of the game as soon as one of the rules is excepted (i.e., broken) and the offending player is allowed to continue his or her play unpunished. In that case, the non-offending players would have valid grounds to claim, I think, that the whole game has been compromised by the very possibility of "rule-breaking" being permitted. In effect, they would have valid grounds to claim that the rules aren't really "rules" in the way that we understand "rules" to work.
In fact, I would argue that our present legal sysatem recognizes this danger and is structured (as much as possible) to guard against it, which is why our legal system tends to favor an dprotect the accused more than the accuser. The real danger, in our legal system, is not the danger of one murderer being wrongly acquitted, but rather one innocent person being wrongly convicted. At least in the United States, the entire legal code is designed to avoid the latter offense, and not the former.