Rebirth of Reason


Disembodied Justice
by Joseph Rowlands

A number of years ago I participated in a debate on the morality of the death penalty. The topic is complex and I don't intend to address it here, but there was one idea that came up repeatedly. It was the idea that punishment should be based on what a person deserves, and not in any way modified by what we know or how certain we are.

An argument on the side of the death penalty was that it may be appropriate at times because of the crime and when our knowledge is clear and certain about the guilt. But if we have doubts about it, or the evidence isn't as strong or bulletproof, we may opt for a lesser punishment. Certain kinds of eye witness testimony might be viewed as no reliable enough. DNA evidence might be required. Any number of possibilities exist for adjusting the punishment based on how certain the information is. Note that even if there is no reasonable doubt, there may still be different degrees of how strong the evidence is.

A counter argument was offered suggesting that it would be inappropriate to take into account degrees of certainty. The claim was that justice requires that the punishment should fit the crime, and that all comparable crimes need to be punished identically. If two people are found guilty for murder, and you give one the death penalty and not the other, it is said to be unjust. Justice requires treating people how they deserve, and that should be the only criterion.

The problem with this view is that it attempts to define justice in terms of some kind of omniscient view of what a person deserves. It ignores the fact that we have to gain knowledge about the world, and the facts are not always easily discovered. Instead, it calls for a kind of disembodied justice.

Why is it disembodied? Because it stops being concerned with the individuals choices and actions. If you treat someone well because you didn't know he had committed a crime, were you unjust? According to the disembodied view of justice, you were. He deserved one thing, while you treated him in a different way. The fact that you acted on your best information is seen as irrelevant.

There is some value in talking about what a person actually deserves, as opposed to what we think he deserves. You can say that a criminal who gets away with it deserves to be punished, although we might treat him with respect and friendship since we don't know. It would be wrong to say that he actually deserves respect and friendship. If we knew the facts, we would know we were mistaken.

While there may be value there, it doesn't make sense to talk about justice in those terms. If you do, you end up with some strange and unpleasant side-effects.

One example of this is that when someone is unjust, we recognize that they are doing something wrong. They deserve to be punished in some way. But would we apply this to someone who acts perfectly reasonably based on his best information? In the case of criminal justice, if a jury voted to convict someone based on the best information available, and then later we found out that they made a mistake, should the jury go to jail?

From the perspective of some disembodied justice, what they did was unjust. They placed a man in a prison for years even though he didn't actually commit any crimes. According to the disembodied justice, it seems that they should be punished. If the measure of justice and injustice is based on an omniscient view of the facts, there's no different between someone acting well on faulty information and someone acting poorly on good information. Both are viewed as unjust.

The human-centered view of justice would see things differently. It would recognize that people have to act on what they know, and not on what they wish they knew. The question would be whether they acted appropriately based on that information. If the information seemed to prove the man was guilty, they would be acting justly when they send him to jail. They would be practicing the virtue of justice. They would be taking action to promote justice. Their decision would be just. And if new evidence was found later, they shouldn't feel guilty or be disparaged. They acted well with the information they had. There's no higher standard available.

Consider a different scenario. Say that you murdered someone for fun. The police would come and arrest you for it. But what if afterwards they found out that the person you killed was actually a murderer himself, and that he in fact deserved to be killed. In the human-centered view of justice, what you did would still be wrong. You didn't kill him because he deserved it. You didn't know it. You murdered him because you're evil. It would still be entirely appropriate to want to throw you in jail and treat you like a murderer.

In contrast, the disembodied view of justice would say that he deserved to be killed, and that your actions were just. Also, that the police would have acted unjustly by arresting you. The disembodied view does not accept the role of knowledge in its view of justice.

The human-centered view of justice is concerned with whether people acted appropriately. And that depends on the information available to them as well as the options they have to choose from. In every other decision in life, your confidence in the facts will modify how you act. This is particularly true when the stakes are high. If you aren't certain that the bridge will hold, you test it, or don't use it at all. Often you'll have to make choices where you know you might be mistaken. It's fine to choose a slightly less optimal action because it reduces risks. It's not just acceptable. It is appropriate.

The opposite view, that you should act the same regardless of your confidence in the facts, is irrational. The view of disembodied justice demands that you act perfectly despite not necessarily knowing all of the facts. It rejects the idea of you recognizing differences in the strength of the evidence. It says justice cannot be concerned with details like knowledge.

The disembodied view of justice is attractive to the opponents of the death penalty because it demands consistent action regardless of the facts or merits. If you recognize that sometime the evidence is too flimsy to use the death penalty, they assume that you will have to reject it in all cases. Preventing you from rationally applying it works in their favor. But that's a bad reason to accept a mistaken premise.

A different reason this view is accepted is that morality is often viewed from a religious perspective. If you believe there is a god that watches all and judges, then there is a kind of divine justice that is possible and important. Human justice would then be a pale imitation, and so there may be arguments to leave moral judgment and punishment in the hands of God. This justice from a god's perspective is the disembodied justice.

And of course, as mentioned, there is a value in talking about what someone objectively deserves outside of our knowledge, just as we can distinguish between what is really happened versus what we think happened. We make this kind of distinction all of the time. We know that our knowledge is limited and the world is what it is regardless of whether we know it. So in this sense, its perfectly appropriate to say that a person would actually deserve one thing if he did it, but if we don't know it, we wouldn't be expect to treat him that way.

But this appropriate view is not the same as disembodied justice. It might allow for enough confusion to accept disembodied justice, but it isn't the same. A human-centered justice can and does recognize that there is an objective and independent truth, and that what we believe is true might not actually be true.

So this different between the disembodied justice and the human-centered justice is in how it judges the actions of individuals. Disembodied justice ignores their knowledge and demands some kind of metaphysical perfection, with anything else being damned as unjust behavior. The human-centered justice recognizes that individuals are acting on the information available to them, and judges them by whether they acted appropriately based on that information.
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