Dear Friends, Family, Neighbors, and Those of You I Don’t Yet Know —
As promised in yesterday’s noticeably brief edition of Odd Company, today’s issue has more to it, and is mainly about justice, the rule of law, how much coercion is reasonable in enforcing the law, and what our aims might be in meting out consequences for those who break the law. Heck, this should be easy. Just kidding. It’s about as easy as lassoing camels. It will take a fine touch and an apple or two, though camels are a lot like goats. They eat just about anything if circumstances are right. My sister and I once had a goat that ate the top off someone’s convertible. Luckily, that was after we sold the goat. But I’m getting off track…
To introduce this challenging subject, I’ve chosen “The Face of Love,” from the soundtrack of the 1996 movie, “Dead Man Walking.” Based on a true story, “Dead Man Walking” is about the efforts of a Catholic nun, Sister Helen Prejean, to save the soul, if not the body, of a murderer on death row in a Louisiana prison. The movie is a perfect illustration of the difference between retributive justice and restorative justice. The victim’s family wants the murderer executed — retribution, an eye for an eye. Sister Prejean wants the salvation of the murderer’s soul — his restoration to grace, and a commutation of the death sentence. This particular piece of music was written by David and Tim Robbins and Nusrat Fateh Ali Kahn. The late Kahn was considered one of the greatest practitioners and composers of the Sufi musical form qawwali, which helps explain the song’s Middle-Eastern tinge, interestingly combined with elements of Cajun zydeco to add a little Louisiana flavor. It is performed by Kahn and Eddie Vedder of Pearl Jam fame.
Where should we begin this exploration? Perhaps with the concept of justice. But we can hardly speak of justice without speaking of the oldest form of law — the social contract. Humans are among the most social species on the planet. We need each other in order to survive. (My favorite illustrations of this point are the old book, Robinson Crusoe, by Daniel DeFoe; if you can get past the political incorrectness, it’s still a good story. And Castaway, the 2000 movie starring Tom Hanks. But you could also toss in Into the Wild, the 1997 book by Jon Krakauer, from which a movie was made. All great stories of people who, in the end, couldn’t survive alone.)
But we are also among the most aggressive species on the planet. We are assertive, and bold, and energetic. And we’re often openly hostile to anyone who scares us or makes us anxious, even momentarily. There are a fair number of humans who seem to get a pleasing hormonal rush from routinely demonstrating their dominance over others. Women will attest to the fact that these are not all guys, by the way. All humans are subject to these behaviors to one degree or another. They come naturally to us. We are hierarchical. That is, we have a pecking order. In the wild, we would work out this pecking order based on physical strength and our ability to use the tools of cunning and deceit. Nasty business, but that’s more or less how the rule of the jungle works.
In other highly social species — bees, say, or ants — what happens between one individual and another is preprogrammed. It has nothing to do with free will. Now, my philosopher husband and my philosopher son will both be frowning and muttering, yeah, but what do you mean by “free will.” We’ve had this conversation before. Frankly, the subject of free will is like the fire swamp in The Princess Bride. It’s full of quicksand and Rodents of Unusual Size, so I’m not going to go very far into it. I’ll just say that my favorite free will rule of thumb is this: if it’s impossible to predict with 100% accuracy what someone’s going to do next, it’s because that person has free will and is using it. Ants do A every time X happens, and they do B every time Y happens, sure as shootin’. Totally predictable — at least according to E.O. Wilson, the prominent insect biologist.1 That’s one reason ants have such orderly societies. Each ant is born with a copy of the ant legal code in its little head, and is obliged by its very nature to follow ant law to the letter.
We, on the other hand, initiate our own actions and thus are responsible for their results. I chose to do this thing, and this other thing happened because of it. In other words, I am responsible for my actions. Unlike ants, we are not born with a rule book in our heads. Some folks say that free will can’t exist, because God controls everything. I don’t like that idea, because it leads to a lot of problems. If we don’t have free will, then why would God kick us out of the Garden of Eden? The whole idea of good behavior getting us into heaven falls apart if we’re not *choosing* to be good. Oh my. See? It’s the fire swamp.
So…since we are able to make choices about what we do, and since we have to cooperate with others in order to survive, we agree among ourselves about what kinds of behavior are okay and what kinds are not okay. We give up certain types of behavior for the sake of peace and security. This is called the social contract. This type of informal agreement among humans has probably been around for a million years or so, maybe longer, since we have to have it in order to successfully get or grow food and safely raise our young. This is one reason most of the people who die in wars are civilians, not soldiers. While the soldiers are busy wreaking havoc, social order falls to ruin. Farms go untended, supply chains and infrastructure fall apart, people die from exposure and hunger. It’s unsustainable.
When a society gets too big for informal agreements, the agreed-upon rules concerning behavior get more complicated and have to be written down so they can be referred to when someone transgresses, and so they can be applied fairly to everyone. One of the oldest known examples of this is the famous Code of Hammurabi. Developed and committed to cuneiform writing around 2250 B.C. by King Hammurabi of Babylon, the code is a set of rules outlining behavior, rights, and standard measurements. The Code of Hammurabi is where we find the first appearance of “If a man put out the eye of another man, his eye shall be put out.” Hammurabi was pretty clearly a devotee of retributive justice. The Ten Commandments, which came to us through Moses about a thousand years later, is another example of a written legal code, and it, too, is backed up by retribution.
Today’s legal codes fill whole buildings. But even though modern bodies of law are something of a tangle, most of us understand the basics well enough to make informed choices about whether or not what we’re thinking of doing will land us in a world of trouble. And across cultures, most legal codes agree on the basics. Murder and theft are to be avoided. Lying carries various unpleasant consequences, depending on the size and type of the lie, etc.
Even the most complicated legal frameworks rely on most people’s desire to play within the rules for the sake of peace. The truth is that if everybody decides a law is baloney, there aren’t enough policemen in the world to make it stick. Witness the federal law that makes the cultivation and use of cannabis a crime. Millions of Americans now routinely grow cannabis or use cannabis products. Many states have legalized it. And there’s really not a heckuva lot the federal government can do about it. We had the same situation with the prohibition of alcohol in the 1930’s. This is one of the main reasons not to pass dumb laws, and is one of the best arguments for enforcing laws fairly. It’s also the best reason to have a government that works well and smoothly. If people lose respect for the integrity and fairness of the social contract, and large numbers of people stop obeying the law, horrors eventually ensue. When we hear people talk about the importance of “the rule of law,” this is what they mean. Without trust in the social contract and our laws, and clear, enforceable consequences for flouting them, we are back to the rule of the jungle. It’s the world of Mad Max, where you die unless you’re powerful or you have powerful friends.
Justice can be defined as the fair and reasonable application of a set of laws. There are a lot of ways in which justice can break down. For example, if some people have to obey the laws while others don’t, if some people are punished more harshly than others for breaking the same laws, or if laws are enforced so haphazardly that people no longer know how to stay out of trouble, then the society becomes unjust. In an unjust society, people on the short end of the stick feel justified in breaking whatever laws they must in order to live, while those with special privileges may come to believe that they can do whatever they like. The result is generally chaos. So it doesn’t take much thought to see the benefits, for everyone, of justice.
Now, it’s getting late, and I’m reaching that stage where the camels are in danger of slipping their leashes. But I think I still have enough functioning brain cells left to pull all of these observations into a herd of sorts.
First, there will always be people who don’t obey the laws. This is why laws have to be enforced and there must be unpleasant consequences for breaking them. People break the law for all kinds of different reasons. Maybe they feel the law is stupid or unfair. Maybe obeying the law is inconvenient. Maybe they feel the law shouldn’t apply to them for one reason or another. Maybe the rewards of breaking the law successfully are so great that the possible penalty seems worth the risk. Or maybe the penalty is so minor as not to be a deterrent at all.
How should we decide on the penalties? What should our goals be in setting them? How can we ensure that the penalty is commensurate with the crime? All of these questions deserve careful consideration. My son, the philosopher turned lawyer, says almost all criminal defendants are guilty. Even if that is so, it still leaves some who may be convicted in error. So we should begin with humility. Our judicial system is far from infallible. Those who claim they are innocent might be innocent. After spending a year learning about the effects of compassion in everyday life, I’m willing to say outright that whatever the penalties we set, they should always offer those who are penalized a path to redemption, and should offer victims opportunities to forgive. People may choose not to take those paths. We do have free will, after all. But the paths should exist.
I have to be up early tomorrow. It’s a busy day that will include preparations for Thursday’s holiday. Happy Thanksgiving to you! May we all find things large and small to be grateful for. See you in a couple of weeks. Till then, a poem of gratitude.
NOVEMBER
Seek and find signs
of waxing darkness.
Even in this mild land
stretched between seas,
leaves of certain trees
brighten to scarlet
saffron, bronze,
still, still, a held
breath, birdsong masked
in morning fog, the bodies
of bees among dropped petals
of Mexican sage, and inside
the kettle’s whisper,
my helpless gratitude
for tea, for the heat
of this cup in cold hands,
for toast and butter
and the buttery light
of sun breaking through.
In The Meaning of Human Existence