We must say no to thirsty justice

Stoic Justice is altogether different than the Justice of our modern legal systems; it doesn’t set out to concern itself with the same things. Consider this from Marcus Aurelius on the concept of Justice in Stoicism: 

“He who acts unjustly acts impiously. For since the universal nature has made rational animals for the sake of one another to help one another according to their deserts, but in no way to injure one another, he who transgresses her will, is clearly guilty of impiety towards the highest divinity.” — Marcus Aurelius, Meditations 9.1

As present day humans, we hardly ever think of Justice the way the Stoics did. What we are concerned with instead is something more like retribution or the meting out of appropriate punishment to those we believe deserve it. Also, of course, the meting out of appropriate reward to those we believe deserve it.

I want to spend the duration of this post articulating exactly how our departure from this more orthodox understanding of Justice is perhaps at the very root of the breaking down of social cohesion in the West that we are presently witnessing and have been witnessing for the last few decades (at least). My hope is that you’ll walk away from these next few minutes with a change in perspective and a motivation to modify your own behaviour from here forward.

Justice, some say, is the most important of the Cardinal Virtues (this is not true, of course, it is just as important as the others and each influences the rest equally) — such people (and Marcus Aurelius is NOT among them regardless of what some popular Stoicism communicators say) say that without Justice one can do nothing else right because they reason that justice is the virtue that orients every action toward its proper relational object, so that when it is absent the other virtues lose their terminus and collapse into their counterfeits — courage turns into mere bravado, temperance into a private self-management with no concern for the cosmopolis, and wisdom into the sharp-edged cleverness the Greeks called panourgia. 

In the view of these individuals justice alone tells the other virtues what they are for, so that without it the practitioner may still look courageous, temperate, or shrewd, yet none of those performances will be a virtue in the proper sense, because they will have been severed from the social nature of the rational animal to which, as the Stoics insist all right action is ultimately referred.

Again, this is wrong. The Stoic thesis of antakolouthia (something like “mutual entailment”) says that you cannot have a hierarchy of the Virtues. This is too deep in the weeds of orthodox theory to make a fuss about here, so I will not. However, one can absolutely see what such people mean and even feel comfortable saying they have some sort of point.

I think this comes from a very long tradition of a particular human disgust: that people should not be given what they do not deserve. In some ways, there is nothing more upsetting to us than when a person gets a benefit they don’t deserver, or, likewise, when a person gets a struggle they don’t deserve.

Jerks become wealthy. Kind-hearted souls get diagnosed with cancer. We’re always and forever asking ourselves “why do bad things happen to good people?” and, of course, the inverse as well.

There’s something about someone getting what they shouldn’t get (whether a benefit or a detriment) that really rubs us the wrong way. 

In our modern legal systems, at least here in the west, we can still see this disgust, and I’ll explain how in a moment but before I do I want to make sure you understand something: there is probably no more vicious an outcome ( from the perspective of Stoic ethical theory) than giving a person what is inappropriate to give them. In Stoicism we’re not concerned with giving people what they deserve, like a reward or a punishment, we’re concerned with giving them what they’re owed as a member of the Cosmopolis and as part of the Natural world and natural order. There is a way to treat each other, and, as I said, there is probably very little which could be said to be worse behaviour (as far as the Stoics would be concerned) than to not give someone what they are owed in our dealings with them.

It is a moral error of the highest water. 

Now, how do we see this in the modern justice systems of the west? We see it in a core belief that there is no greater miscarriage of the law than to assess an innocent party as guilty.

Numerous are the stories of black men in America who were accused of rape, found guilty, imprisoned for decades, only to be exonerated by DNA testing after so much of their lives had been spent in confinement.

Vincent Simmons, Ronnie Long, the Groveland Four; the list is substantial. And it’s not just black men, and it’s not just for crimes as heinous as rape, but these cases, in particular, make our blood curdle. We feel like we, as a peoples, have done something unspeakably cruel: we’ve taken nearly an entire life from someone — and we’ve done it wrongly.

It would be better, I think we all agree, for a murderer (for example) to go un-captured, than for an innocent person to be found erroneously guilty of murder and then locked away for life or, worse, executed. If not for any other reason than, having locked up the wrong person, the truly guilty party has gotten away with their crime anyway. The only difference is that now there’s an additional travesty; I would say a worse one since it would be ongoing and continuous.

But this instinct (that the system must be biased, at the margin, toward protecting the innocent) is facing increasing challenge among members of the public, and not because anyone has mounted a principled argument against it, but because it has been eroded by something older and less reasoned: the raw appetite for a culprit. 

We used to ask, and care about the answer we’d receive from asking, “did this person do the thing we are about to punish them for?” 

But we are now far more likely to ask “is this person sufficiently adjacent to the thing that punishing them will feel like justice?” And while we’re not literally asking this question, because asking it that way would confront us immediately with our thirsty-for-a-culprit bias; we, by all accounts, thinking this way more and more and more.

And this is absolutely dissolving the connecting glue of our societies.

You can feel it in the tenor of any public controversy that reaches a certain pitch. Someone is accused; a camp forms; and very quickly the question stops being what actually happened and becomes which side are you on. Evidence is no longer something to be weighed but something to be enlisted, used only when it helps and discarded only when it doesn't. Not only do the accused becomes a vessel for the accumulated frustrations of whoever is doing the accusing, but the number of accused individuals multiplies by the day. 

We’re no longer just thirsty to punish anyone whose been accused, we’re thirsty for more people to accuse and punish; for as many people as possible to hold accountable for the state of the world that is going to pot around us.  

And so the bar for what actions are worthy of condemnation, accusation, and punishment, has gotten lower and lower and lower. We’re now happy to ruin a person’s career simply because they hold a view of “how things ought to be” that starkly contrasts with our own. We have, as I’m sure you aware, literally Nazis everywhere who are absolutely not literal Nazis. Though this is, admittedly, difficult to navigate since there are, in fact, literally Nazis everywhere.

This is the thing Stoic justice would have us attend to with the most painstaking care, because giving each person what is owed them requires actually knowing what is owed in the first place. But we rarely seem willing to do that work these days. What matters to us, instead, is that someone pays, and that the paying be visible, and that it be visible soon. 

This as a particular kind of moral failure in Stoicism. It’s not injustice in the ordinary sense of wanting to harm someone, but injustice as a failure of attention; a refusal to do the patient work of looking at the actual situation before the verdict is meted out. 

We cannot give each person their due if we will not first find out what is due.

Once you close this tab and go back to whatever the rest of your day looks like, this is what I’d like you to do: 

The next time you find yourself reaching for a verdict (about a colleague, a stranger on the internet, a public figure whose name has just surfaced in a story you've only half-read, or a neighbour whose behaviour annoys you) pause long enough to notice what you are actually doing. Are you trying to find out what is owed, and then give it? Or are you trying to find a target for something you were already feeling before this particular person came into view?

The difference here is the difference between a just act and an unjust one, regardless of whether the person on the receiving end happens to deserve what you hand them. Getting the right outcome by accident is not justice. Justice is the discipline of looking carefully, the willingness to be slow, and the honesty to admit when you do not yet know enough to act. It is a practice, and like all practices it can be trained or it can be neglected — and, don’t forget, the direction of progress (or regression) compounds.

What is true of you the individual is true of the society of which you are a part. An individual who has lost their appetite for the patient work of finding out what is owed, and who replaced it with an appetite for visible punishment quickly delivered, is, eventually, a society which has suffered the same fate. And such things will not stop at courtrooms and comment sections. They will remake, slowly and then suddenly, the texture of ordinary life between neighbours. 

Every one of us is part of resolving or making worse this problem. What part will you play, an how will you play it?