Over two years, and so much has happened. Where to start after that time, eh? Well, like with most places, with a review of what has come before.
I was observing how strongly I was examining the concepts of justice and compassion in my earlier posts, and considering where I was coming from that makes perfect sense. One semester away from a Master's degree in Public Policy has given me a whole new realm of mess to throw into the mix. Namely, the formulation of the objective form of justice: laws.
So, what is a law? Well, in it's purest form it's a directive that the legislative branch puts on the executive branch. At the most basic level that's all it is, it starts as a bill drafted by the house, approved, run through the senate, approved, then confirmed by the president and signed 'into law' (made active and official). All it really is, is just the legislative branch telling the executive branch what to do though.
What does 'the law' and 'justice' have to do with each other then? Well, if, as I've been discussing before, justice is a form of either punitive or compensatory action to either retain homeostasis of event-affected individuals, or to guide their forward path (I'm still grappling with the probabilistic-justice analogy), then a law is an individual direction to the executive branch on how to do this in general circumstances.
"But wait, Jason," you might be thinking, "what about the judicial branch?" Fair question. The judicial branch's purpose is as interpreters and arbitrators on the law. Now, if we go by a strict interpretation on what I'm saying the law is then the only cases that could be brought are against the executive branch for not doing what it's supposed to. This does happen, where individuals sue the state. The supreme court cases for Prop 8 and DOMA are examples of this. However, we also have the state suing individuals, and individuals suing each other (not getting into the citizenship status of organizations, that's a whole other ball of wax).
What can we infer from this? Well, if the core purpose of law is for the legislature to direct the executive to action (or to direct them away from certain actions), and the executive is remiss in doing so then suit can be brought. I infer from this that suit can be brought when the law specifies certain behaviors need to be performed (or not performed), and they are not done so. Now, since individuals can be sued, that means the law can have behavioral expectations of individuals. Through this, that means that the legislative can direct the behavior of individuals. Therefore the definition of the law must be expanded to include, at a minimum, directives towards individuals.
Let's look at this though, we now have two forms of directive. One where the legislature is directing the executive, and one where the legislature is directing individuals. Are there qualitative differences between these directives? As the judicial branch sees it (or rather how they're *supposed* to see it), no. In implementation however, I would argue yes. Consider how law enforcement is carried out (no not just criminal justice, but enforcement in its generic sense). For executive directives, the executive branch is somewhat self-policing, and also watchdogged by the legislature and citizenry. For individuals, it's enforced by the executive, and how it's enforced is watchdogged by the legislature and the citizenry. I would argue that this creates a much different experience of law for the executive than for individuals.
Ok, let's get back to justice for a moment here. So, it seems like law is about direction, and justice is about punishment or compensation. These two don't inherently overlap, but like a Venn diagram, they can overlap. I will call that overlap justice-based laws. Or, more specifically, laws that direct executive or individual behavior in circumstances where an event has removed an individual from homeostasis, and that direction is focused on either punishing the affector, or compensating the affectee, to return the affectee to homeostasis or set them on a new trajectory. Ok, that was a mouthful.
Let's break that down a little then, what does a justice-based law need to function? Well, first, it needs a circumstance that it identifies as having an individual removed from homeostasis. Theft is a good example. A person has something, like a TV or a car, and they expect to continue having and using it. Their expectation is legitimized through ownership (another subject for another day). An outside force (another individual in this case) removes that object from the person so they are no longer able to use it. There are nuances here in the realm of consent, but this example assumes that the outside force does not have the person's consent to do what they did. So, quick and more plain-English recap: a justice-based law needs to define the circumstances in which its applicable.
Ok, next up, a justice-based law needs to define the affectee and the affector. The afectee is always going to be the individual(s) whose homeostasis was breached, and the affector is always going to be the individual(s) whose actions breached that homeostasis (consider that they can be one in the same, example: suicide laws). That's easy in this case, the person is the affectee and the outside force is the affector.
Now, here comes the tricky part; a justice-based law needs to identify what remedy is applied to the circumstance. What the remedy is depends on what justice framework is used. This would be the 'return to homeostasis' framework, the 'moving forward' framework, or the (and still not clearly understood by Jason) 'probabilistic' framework. I'll focus on the first two because I can actually understand and explain them.
It doesn't stop there though, let's look at the punitive and the compensatory frameworks too. In the most basic sense, punitive action takes from the affector, and the compensatory action gives to the affectee. This can, technically, be the same action (take from the affector and give to the affectee), but it's important to break them up separately, as some things can't be trades like this, as not all cases are theft (-: Ok so where does that leave us? Well, we have a rubric of three 'objectives' (return to homeostasis, moving forward, and probabilistic) and two 'responses' (punitive and compensatory).
So, let's return to our example. We have an affector who's stolen, let's say a car, from the affectee. Our justice-based law has identified stealing a car as a breach of homeostasis, and identified both the affector and affectee. To flush out our law it also needs to identify how to respond to the homeostasis breach, and that's where the rubric comes in. We have six categories to identify a response with (though some individual repsonses may fit more than one category). The immediate idea that comes to mind is taking the stolen car from the affector and returning it to the affectee. This is a 'return to' objective (the end result brings everything back to where it was before), and both punitive (something is taken from the affector) and compensatory (something is given to the affectee). "Ok Jason, that's great, but don't thieves usually get prison time too?" Yes they do! Let's examine that, however. That's taking something from the affector (liberty), so it's a punitive action, but it doesn't try to restore homeostasis to the affectee, so that makes it either 'moving forward' or 'probabilistic' goal. Now, again I'm still pretty brainwarped on what probabilistic looks like, so let's go with 'moving forward' for now (yes I am limiting my rubric to a 2x2 because of my lack of understanding, I'm working on it!). So, with a pretty standard case, person's car gets stolen, thief goes to jail and car gets returned to its owner, it fits within the justice-based law framework here. I would argue that in a general sense this framework can work on many different types of laws, and not just criminal laws.
However let's take a step back, because what we're really talking about here is a framework for understanding the implementation of justice. So, we have this system that identifies an affector and affectee, identifies a breach of homeostasis, and identifies a response to the situation. In a real-world situation that response is carried out by the executive branch. The police return the car to the owner and lock up the thief. Aha! Ok, so let's look back at the old notion of the law, and its directive powers. Is the law really directing individuals here, or is it directing the executive branch to respond to individuals actions/circumstances? I would actually argue the latter. Consider what happens if the police aren't there (or far too frequently when they are, another issue for another time), the response actions are not conducted.
"Alright Jason, what about civil cases?" Ok, fair point, but consider that the judicial ruling is still actionable only be the executive branch. The court decision is telling the looser 'unless you do this, the executive branch will whup your ass', which is less of a directive to the individual than it is to the executive branch to act on the individual if they don't comply with the ruling of the court.
Taking another step back, this implies that justice, in its real-world form, is about how an outside force decides to come in and 'fix' a situation it finds issue with. Yes, this is a little cynical, but still accurate. Consider that justice, in this sense, has nothing to do with morality. There is no 'right' or 'wrong' behavior on individuals here, only an internal behavior model for an outside entity that responds to homeostatic breaches.
What is justice then? At this point it's fair to say that justice is so far divorced from fairness, morality, community and society, that mainstream ideas of justice are generally rather bogus.
Up next time: Justice and burecracy! Ooh what fun! (-:
- Jason
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