A Justification of Law

Human society requires ethical conduct for its smooth and equitable operation. Promises must be kept, prices paid, contracts honoured, and consideration given. For the most part, human societies are informally self-regulating, with moral codes enforced by parents and peer groups with the reward of approval or the punishment of disapproval.

But even in the most virtuous societies, disputes will periodically arise between individuals, some injury be caused. And although for the most part these disputes may be informally resolved between such individuals, and injury repaired, in some cases the resolution of disputes proves intractable. In such cases, individuals may turn to friends, family, or respected elders to offer some sort of equitable resolution of disputes. Or, confronted with a damaging dispute between some of its individual members, the society to which these individuals belong may intervene to resolve the dispute. Either way, as a last resort, private disputes between individuals may become matters of wider social concern. For disputes within a society are harmful to society, particularly if they escalate and widen.

And because an appeal to society, or to a king, or some other ultimate authority, is a last resort, the final judgment must be binding - for otherwise there can never be an end to any dispute. Thus while the advice of friends and families, and the considered opinion of elders and wise men, is seldom binding, in the last resort the final judgment must be binding. And it is the formal, final, and binding judgment that carries the force of law, whether it is exercised by an individual - a king - or some body of individuals - a court -, and whether it is determined from study of statute law, or from the example of prior precedent, or through debate and discussion, or by arbitrary fiat.

Disputes within society might be compared to diseases of society. And while doctors and surgeons cure physical disorders, the law seeks to cure social conflict. The analogy is apt, in that the greater mass of minor physical disorders - coughs, colds, cuts and bruises - are treated by the injured themselves, and resort only made to medical authority when self-treatment proves ineffective. And again, just as not all medical conditions can be cured by doctors and surgeons, so also some disputes cannot be resolved by going to law.

Justice as Restitution

Idle Theory's account of law is closely connected with its account of ethics, which divides ethics into a primary and secondary ethics. Primary ethics is about generating idle time, and secondary ethics is concerned with what is done in idle time. For example, primary ethics is concerned with murder, theft, and the like, while secondary ethics is concerned with aesthetics, fashions, tastes, manners, customs, games and the like.

Primary ethics is as important to the the survival and prosperity of society as the manufacture, trade, and use of tools. Indeed, it is arguably more important than any of these, in that without honesty, trust, and consideration, human society cannot function at all. The breakdown of primary morality in any society will tend to have catastrophic consequences. And in many senses it is precisely because primary ethical behaviour is of such vital importance to society that primary ethical codes of conduct become formalised as laws, and violations subject to penalties. Formal legal systems, with courts and judges and penalties, emerge upon the decay of public morality. When primary ethical codes need to be enforced, public morality is already in decay.

It is primary ethical behaviour which needs to be enforced by law, not secondary ethical behaviour. There should be laws concerned with theft and assault and murder, but there should be no laws concerned with art and music and theatre and games. Thus while law and morality overlap, law should only be concerned with primary ethical concerns. And given that some primary ethical behaviour - such as giving way to others in narrow doors or passages - deal with such small periods of time, of a few seconds, that they can hardly be subject to formal legal constraints. Or else, some activities of primary ethical concern may be unenforceable by law. Thus law should always be concerned with some subset of primary ethics.

Good laws, like good ethical rules, act to increase social idleness. And conversely, bad laws, like bad ethical rules, act to decrease social idleness. The measure of any law therefore lies in its practical effects upon society, in the degree that it makes life easier or harder.

The penalties attached to lawbreaking, furthermore, should generally be restricted to making restitution. Those gulty of breaking laws and causing trouble for other people should generally be required to work to provide restitution to those they have injured. The legal tariffs for lawbreaking should not be punitive. For if anyone is required to make more restitution than is strictly necessary, this constitutes yet another inequity on top of the original. For example, if some individual causes damage which requires several months of work for him to make good, he should not be required to work for several years.

If justice is restitution, then it follows that penalties such as execution or imprisonment are wholly inappropriate, because they provide no restitution. If one man kills another, then his execution amounts to a second murder, which provides no restitution whatsoever. Equally, if a man commits some crime, and is imprisoned for five years, then this subtracts five years from his liberty, and provides no restitution whatsoever for his crime. And furthermore, such imprisonment detracts from his future ability to return to everyday life. Nor does it provide restitution if a man is fined, but the fines are not passed on to the injured parties. It is really only in the case of persistent and dangerous lawbreaking - such as those carried out by the criminally insane, or by serial killers, rapists, and thieves - that society should consider imprisonment as an unavoidable option.

And thus laws which demand penalties, such as imprisonment or execution, only compound the injury done to society, act to make a bad situation worse, and reduce social idleness. For ultimately lawbreakers remain a part of society, and their diminution diminishes society. It might be said that all members of society are lawbreakers at one time or other, particularly in a society whose laws are so numerous and complex that nobody - not even lawyers and judges - knows the whole of the law, and unwitting infractions of the law become inevitable. Nor should it be thought that there exists two types of person, the one virtuous and law-abiding, the other vicious and law-breaking - "Good Guys" and "Bad Guys" - into which latter class any person is automatically and permanently assigned on breaking any law. Nobody, in any case, is able to pass judgment on the character of anyone else, without knowing the whole of their heart, and the entire history of their life - because both are impossible to know. The best that can ever be done in the matter of lawbreaking is to ascertain what damage has been done, and who has done it, and pass over all judgments upon the good or bad character of the lawbreakers.

It is argued that the penalties exacted by the laws ought to be harsh so as to act as a deterrent for other would-be lawbreakers. No doubt in some cases, this does act as a deterrent to crime, but in cases of insanity, or crimes committed while in the grip of irrational passion, and any number of other examples, there will be no deterrent effect whatsoever. And furthermore, once deterrence, in the form of the excessive punishment of one lawbreaker pour encourager les autres, has been built into the penal code, this automatically ensures that justice is never be done, and that no justice can be found in law. And this can only diminish the standing of the law.

Unjustly punitive laws not only serve to diminish social idleness, but they are also likely to create a class of unjustly punished persons who will - perfectly justly - believe that, rather than they owing a debts to society, that instead society owes them a debt of restitution. And such persons, subsequent to their unjust and excessive punishment, are likely to seek to find restitution by their own means. Thus a thief who is condemned to 5 years in prison for a crime whose true damage would have taken a few days or weeks to repair, may well feel more than ever inclined to resume his life of crime upon his release from prison. And in this manner, unjustly punitive laws will regularly act to create and nurture a criminal subculture, firstly by disallowing lawbreakers from regaining their place in society, and secondly by convincing them of their own just case for restitution or compensation.

And if justice is retribution or retaliation, then justice is no better than mob rule, and one may as well leave justice to lynch mobs. What difference does it make if the mob wears judicial robes, and pronounces sentence using archaic formulae rather than crude oaths and curses, and carry out the execution in a chamber rather than from a tree or lamp post?

Indeed, the whole idea of punishment, as the infliction of constraint or pain or death, should be wholly absent from the law. It is not the business of judges to pass judgment on men's souls, to declare one man good and another evil, and to reward one and punish the other.

And in this respect,...

---the following should be a separate essay -

In modern Western society, many political and social commentators bewail what they perceive to be a decline in public morality. But in almost every case, they fix their attention upon changes in secondary rather than primary ethical concern. For very frequently they are most concerned with sexual morality, with drug use, with supposedly 'subversive' art and literature and music. For these people, it seems that morality is primarily sexual morality, and little else. And yet, for the most part, sexual behaviour, drug use, literature and music, are all idle time activities, and of no primary importance in the operation of society. It does not matter if some people are homosexuals or pederasts in their idle time, so long as they carry out their social duties effectively. The same also is true of smoking marijuana or opium in idle time. And this is true of any other idle time activity. So long as an activity has no effect on social idleness, it is of secondary ethical concern.

There are, of course, circumstances where secondary ethical concerns spill over into primary ethics. The institution of the family is of primary ethical importance to society because it is family which produces the children who will in time provide society's work force. Since families perform useful work for society, they are likely to be subject to legal regulation, particularly in respect of the care and education of children. And sexual morality may become a matter of primary ethical concern if sexual promiscuity results in the transmission of debilitating or fatal diseases throughout society. Or again, sexual conduct is a matter of primary ethical concern if it involves assault, kidnapping, injury, or any other reduction in idleness. Sexual acts, in and of themselves, are of little or no primary ethical concern.

Indeed, it might be said that it is a mark of decline of public morality when the guardians of public morality focus their concerns upon issues which are of secondary, even trivial, concern.

One explanation of the apparent primacy of sexual morality among guardians of morality may simply be that sexual acts are among the most intensely emotional human experiences. This suggests that contemporary guardians of morality have adopted an irrational emotivist ethics, in which what matters most is what people feel most strongly about. Or else, if not emotivists, these guardians may simply be concerned with the maintenance of traditional morality in every respect. Traditionally, adultery and fornication were penalised, and nobody smoked hashish or opium, and they listened to folk music rather than electric rock music, etc, etc, and therefore all these developments necessarily undermine traditional morality, simply by not being traditional. If so, traditionalist moralists are attempting to freeze society in some imaginary golden age of moral righteousness. Such people would probably want to return to horses and buggies, ox-drawn ploughs, and water supplied from village wells.

But many of the apparent problems in modern Western society may simply arise from economic growth which has generated large amounts of idle time, without having provided any activities with which to structure those idle hours. Traditional working society never had sufficient idle time to require any careful structuring, and so traditional society is largely incapable of resolving the 'problem' of large increases in social idleness, except by trying to recreate tradional society, and enforce traditional morality.

retribution r n.

1. Something justly deserved; recompense.

2. Something given or demanded in repayment, especially punishment.

3. Theology. Punishment or reward distributed in a future life based on performance in this one.