Judicial Reform (Part 1)

Since the dawn of civilization, mankind has striven for peace.

While such peace may inhibit the reckless ambition of some, in the end, most people prefer security: the freedom of fear for their lives, their loved ones and their possessions. As such, civilizations since their inceptions have existed, in part, to create a peaceful environment for those who are part of them. The primary way of checking the few who are willing to be coercive to attain their ends is the establishment of justice.

While opinions of the exact nature of justice are as varied as the opinion holders themselves, few would disagree that the main purpose of justice is to "right wrongs". That is, when someone breaks the peace and inflicts harm for personal gain, we want to have some way to commit actions that will "fix" the problem of the harm being done. Ideally, we'd want this to be done by a third party, or else things tend to devolve into feuds where neither of the parties is able to enact the proper corrective action without going too far and creating new wrongs.

It was this basic idea that founded the very core of justice as we know it today. In ancient times, this began by giving power to certain individuals to handle these social problems. The Pharao, for example, could settle disputes, and his decision about how to right wrongs was considered to be final. Likewise, ancient Jewish culture was ruled by, aptly named, judges.

It took the ancient Greeks, however, to really reason through justice all the way through and codify the ideas of the ancient world. The core idea of justice, according to them, is balance. Namely, if one party committed a wrong (such as looting your village) the proverbial scales were unbalanced. There was loot on your side, and there was an absence of loot (plus perhaps the loss of a house or women) on my side. The whole point of justice, then, was to balance the scales. Because I, as the afflicted party, am unlikely to make the punishment exactly fit the crime (I would probably propose a punishment that unbalanced the scales in my favor), an adjudicator was most often called for.

The important point is that judges always sat between two parties, meting out the proper amount of restitution, retribution, and other punishments so that both parties could feel that they were treated fairly, and life could go on without further violence.

Along the way, in a touch-and-go fashion, there was the creation of legal codes, like the Hammurabi Code, or the Ten Commandments. Generally speaking, these were designed to be an aid to local arbitrators. For example, if someone kills me, how is it possible to have justice? What can you put on my side of the scales to make things even again? Likewise, what should be the punishment for rape, or perjury? In these confusing circumstances, having a civilization-wide approach would be very helpful for keeping an even peace across the entire land. For most other things, though, non-guidelines like "an eye for an eye, a tooth for a tooth" helped people to remember to keep things fair and equal in the pursuit of justice.

But then things changed, and we're still reeling in the mess it's created. Stunned by national losses and tragedy, many ancient civilizations were at a loss for how to achieve justice. For example, when the Caananites were repeatedly crushed and sent of to Babylon (among other places), it created a serious problem for ideas of justice. "Why was our civilization completely wiped out?" In the end, the only way to keep the ideas of justice consistent was to come up with the natural conclusion of "because you earned it". The destruction of your armies, the rape of your women, and the utter destruction of your people was actually what was required punishment in order to make the scales even again. But what could a whole nation have done to deserve this?

The answer, in many places of the world, was that the nation as a whole had committed an offense against a god, or gods. For example, God gave the Israelites a massive, complex legal code (the entire Book of Deuteronomy, for example). When these laws were broken, it wasn't that they were commiting acts of injustice against their neighbors, but against God himself. Now, for all of the imbalances against God, he was simply re-balancing the scales. National retribution was the result. This idea was pervasive in the ancient world.

And then something massively important happened with this story. Christianity, in its fledgling state, eventually hit the Roman empire. The core Christian message was that God was now a god of forgiveness. Now, rather than enforcing retribution in order to even the scales, God would pardon you. The scales would be even, no retribution was required, forgiveness made everything even. This radical new way of thinking about justice, however, wasn't all that well recieved in the ancient world, and, invariably, it wound up getting corrupted as the ideology came into conflict with existing ideology, and existing legal institutions.

The foremost of these was Rome. Rome was founded as one of the world's first republics. Central to this idea was that the state was created by the people, but it was also owned by the people (well, at least the percentage of ones who had any say). This created a new problem. If I were to deface a public building, who would be the other party on the other side? In a monarchy, the answer is simple: the king owns all public and state-held property, so the king would be the plaintiff. In a republic, however, no one group of people payed for the building, because everybody had. Clearly, the scales needed to be balanced (and someone needed to pay for the repairs). This created a new idea: a crime against the state. Now, the government, representing everybody the government represented, would stand as a single, united party on the other side.

While Rome didn't stay a republic forever, the idea of a crime against the state would continue on as a new legal precedent. While some decidedly Greek thinkers, like St. Paul, were able to reason through how Christianity was supposed to be expressed in the real world, it fell tragically short once it combined with a Roman civilization that took its law and ability to mete out justice very seriously. The end result was the Roman Catholic Church.

Starting with Constantine and his immediate successors, Christianity would be formalized and homogenized (a very Roman thing to do) to make it simple, and most importantly portable, to all corners of the empire. Doctrine was codified, and any who resisted lost their heads and had their "heretical" works burned. While Christianity had brough forth a radical new idea about justice, the Romans wouldn't have anything of it. Bereft of old, pagan, Roman laws, Roman Christianity came up with new sets of Christian laws, based primarily on the old Jewish legal system. Combined with a new way of understanding the cosmos and the supernatural, God was once again put at the heart of it.

Born was a new legal system. Now, God would dictate what was right, and the state would enforce it. Furthermore, through the power of the church, legal officials were able to clarify and create new laws in Gods name (they would know what God intended, after all). Thus, in the end, if you didn't follow the law, you were now commiting an injustice not only to god, but also the church/state. Out was the message of forgiveness, in was a new system that was just as much Catholic as it was Roman.

This shift was crucial. Now, rather than being a party that sat between two parties, the judicial system now also stood above parties between them and God. Furthermore, the judicial system was now authorized to be a party in and of itself on God's behalf. This caused the church to often wind up as both adjudicator (between you and God) and as plaintiff (the other party in the court case). Needless to say, this was a recipe for disaster, which such things as witch hunts and inquisitions would eventually prove.

While the Protestant Reformation and the ensuing political re-writing of the political system would do a great deal to break up this power, the core idea would continue on into the modern time. For example, many believe that homosexuality is a sin against God. As such, they get their state's legislature to make laws against it. Anyone caught in the act of being a homosexual no longer simply commits a crime against God, they simultaneously commit a crime against the state. But how could the state justify being the plaintiff, when the state itself hasn't been wronged in any way? Because, according to the advocates, if the state does not mete out justice on God's behalf, eventually God will mete out justice on his own behalf, which will be the destruction of everybody.

Of course, this is a denial of the entire point of Christianity, but it isn't a denial of an ancient way of thinking, kept alive by fundamentally Roman institutions.

Where this leads us today is a judicial system that has completely run amok. While the judicial system aptly arbitrates disputes between two parties, and they are still capable of prosecuting people who commit legitimate crimes against the state (hijacking a mail carrier for example), they are also in an insane position where they are bound to adjudicate between average people like you and me and arbitrary, morals-based legislation.

Now, it's possible to have "justice" done to you when you don't even inflict harm against anybody else (nothing has been put out of balance), but when you are doing something that isn't in line with what the legal code tells you to do. You can't grow marijuana on your property, not because you're doing any damage, or hurting anyone, but simply because "drugs are bad". Likewise you can't possess automatic rifles because "guns are bad", and you can't park your car in a loading zone for more than 30 minutes, because clearly you're a terrible person (and, by extension, a criminal) if you do.

We now live in a world where criminal law is top-down, and where you get thrown in prison if you don't meet an arbitrary consensus of an idealized moral life. No wonder 1 in 30 adults are in prison, if you can get put there even if you never hurt anybody.