만인에 대한 정의실현의 가능성에대한 논고
피해자와 범법자에 대한 공정성에 대하여
What is justice? Is justice for both victims and offenders possible? We often encounter criminal assault that undermine the stability of our community, and we tend to react fervently either toward the criminals or toward police officers who could have prevented such catastrophe without deeply philosophizing and thinking about the practice of social justice. It is essential, however, to analyze the nature of justice and how justice (retributive justice specifically) can be achieved in the case of criminality.
Justice has a component of fairness and equality. As Nozick underscores, justice also implicates individual liberty, for equality without liberty is equality worth not having. In this sense I agree with later Radbruchian notion of anti-legal positivism and categorical justice─that justice is by definition universal and thus above constitutional jurisprudence. But what is justice precisely? Is it equivalent to fairness? Can justice be reduced to liberty? The definition of justice seems to differ from culture to culture. Thrasymachus theorizes that justice is a name for what the powerful despot imposes on the citizen whereas John Stuart Mill reduces justice into positive utilitarian consequence; while John Locke argues that justice is natural law given to us, Hobbes argues that justice is a human creation via social contract that emerged from the state of nature. Do we then need to conclude that the definition of justice is relative? It seems all candidates of definition of justice share one manifest common ground: Justice is an axiom specifically for well-beings of individual or group of individuals concerned. Either way, justice is something that is socially demanded, not a subject of justification. Thus, despite cultural relativism, violation of human rights and primary individual freedom can still be objectively unjust.
From this we can deduce that unfair practice of justice is incompatible with the concept of wrongdoing, because, if there is no distinction whatsoever between the judicial treatments of the wrongdoer and the innocent, then the practice of wrongdoing loses its meaning as wrongdoing. In the possible world where unfair practice of justice is allowed, the innocent can be equivalated to the wrongdoer and vice versa, making the very attempt of differentiating the wrongdoer from the innocent pointless. Hence (1) justice can only be defined by distinguishability of justice from injustice, and (2) fairness is not only a necessary condition of justice but also is a necessary condition of constitutional jurisprudence. Now that we have discussed important facet of the nature of justice, let us jump into the heart of the problem:
(K) Is fair retribution toward offenders possible?
But what is a “fair” retribution? How can we epistemologically know that it is fair? According to the Oxford English Dictionary (OED), “fair” has at least two distinctive meanings; (1) acceptable and appropriate in a particular situation, and (2) treating everyone equally and according to the rules or law. The former seems unhelpful because, as acceptableness is a relative concept, so is appropriateness. The latter is also problematic but more interesting: While fairness is defined as treating everyone equally, such treatments are not always entailed by rules or laws in reality, as Socrates points out in <The Republic> that rulers are liable to make mistakes and thus fallible, suggesting that some rules may not promote equality. This reveals that the definition of fairness in the OED is prescriptive, not descriptive; it tells us what fairness should be, not what fairness is. Assuming that the answer to (K) is positive, we get the following statement:
(*K) Fair retribution toward offenders is possible
Despite the equivocal definition of fairness, the statement (*K) suggests not only that fair retribution is possible, but also that a set of propositions such that they form a sufficient condition of (*K) does in fact exist. Hence, we can deduce the following schema from the proposition (*K):
(J)The offender’s action P (that is considered to be an offense in any sense) can be fairly retributed by implementing Q.
P stands for any criminal offense and Q stands for any compensation that involves fair retribution for P. if we can find an appropriate Q, then we shall conclude that such a retribution is possible, but if we fail to find one, then we shall need to conclude that fair retribution is not possible. Then how do we define Q such that Q is fair retribution for P?
First, because the victims tend to hope for the maximum retribution possible on the offenders and the criminals tend to wish to have the minimum retribution possible, it is obvious that fair retribution must not be based merely on the satisfaction of victims and offenders. Second, while the degree of retribution is dependent on the type of criminal offense, it is also dependent on the motive behind the offense, for a harm done without any intention to do so need not be treated as an advertent crime, given that retributive justice in part aims to rehabilitate the wrongdoer. Third, retributive justice must be consistent; if it is, for instance, known that two or more hypothetical criminals in identical conditions have done equally serious crimes, though judicial decision may differ slightly, one cannot be set free while the other who has done the exactly same offense is sent to jail for 50 years. Fourth, retribution must be sufficiently reasonable so that it can either replace the damage caused by the offense or that the victim is satisfied with the judicial decision. With all this in mind, we can revise (J) as follows:
(*J) The offender’s offense P can be fairly retributed by implementing Q, such that Q is based on consistent and reasonable retributive criteria based on the consideration of the motive behind the offense, the type of an offense, rehabilitatability, et cetera.
Because fair retribution attempts to balance the wrongdoing and its restitution, it is manifest that fair retribution is based on value. Then how can we determine whether Q weighs exactly the same as P? How do we know a random retribution Q’ is an appropriate retribution for a random (but corresponding) offense P’? The following thought experiment would help illustrate the problem. If Kevin, a 39-year-old man, intentionally murdered 5-year-old boy, what would be a fair treatment for him? Primoratz would certainly argue that capital punishment would be such a kind of retribution:“This view holds that the value of human life is not commensurable with other values, and that consequently there is only one truly equivalent punishment for murder, namely death.... Any other retribution, no matter how severe, would still be less than what is proportionate, deserved, and just”(Primoratz, 159) Primoratz believes that the only possible retribution appropriate for a murderer is a death penalty since the “only one truly equivalent punishment for murder” is death. Thus, according to Primoratz, the following holds true:
(*JPr) The offender’s homicide can be fairly retributed by implementing the death penalty, provided that it is based on consistent and reasonable retributive criteria based on the consideration of the motive behind the offense, the type of an offense, rehabilitatability, et cetera.
Unfortunately, Primoratz’s argument seems to have a problem once we begin to consider more than one victims. Let us suppose that, during the trial, Kevin was actually found to be a wanted serial killer who had murdered ten people in total. In this case, simple <capital punishment=solution for a murder> equation doesn’t work. This is because Kevin’s life does not and cannot worth more than one life. Thus, given that the death penalty is an appropriate restitution for a murder precisely because that is the only way to equivalate the damage and the restitution, sentencing Kevin to death would be an implicit acknowledgement that his life is more valuable than the other. Primoratz’s argument can therefore be used against his own conclusion.
As we can see, lex talionis (that the punishment inflicted should correspond in degree and kind to the offense of the wrongdoer) fails to work in the case of Kevin, as capital punishment does not correspond to the offense. Thus capital punishment by definition cannot be fair retribution in this case. Let us now consider argument against the death penalty. Fotheringham strongly disagrees with the implementation of capital punishment, for many people have been wrongly convicted of murder. If sentenced to death, there is no chance of exoneration. This view of course has its own problem because, as Primoratz pointed out correctly, Fotheringham’s argument is actually tangential to the implementation per se of the death penalty but rather concerns the imperfect judicial decision that is made. Then what would be a fair treatment for Kevin the serial killer? Although one may insist to imprison him for life or to torture, Primoratz claims that “any other retribution, no matter how severe, would still be less than what is proportionate, deserved and just.” After all, (1) there will always be some proponents of human rights who oppose torturing Kevin and (2) it is ambiguous how torturing/imprisoning him can be fair retribution for the offense, as no one can literally “measure” the psychological/financial/physical damage caused by P and determine the penalty that weighs the same.
So far, we have found at least three pieces of useful information that may guide us to a tangible solution: (1) Q cannot be fair retribution when the cost of P exceeds the cost of Q, (2) given that some kind of retribution must exist in order to protect the society from criminal offense, it is unreasonable to conclude that fair retribution is impossible just because it is difficult to find Q that corresponds to the cost of P, and yet (3) there seems to be no way of measuring the value of damage caused by any given wrongdoing, and thus it appears to be difficult to claim that perfectly fair retribution is possible. But haven’t we just used a phrase like “...when the cost of P exceeds that of Q,” as if it is possible to measure the cost of an offense/retribution? If it is impossible to measure the cost of damage accurately, according to (3), how can we even be sure that the cost of retribution is not equivalent to the cost of an offense? <knowing at what point the costs of P and Q can be equalized> may entail <knowledge that the costs of P and Q are not identical>, but the impossibility of achieving the former does not guarantee the impossibility of achieving the latter. This reveals that we can at least try to balance each side out by adjusting the level of retribution or restitution to reach fair retribution. This is how modern day judicial decision is made─we set reasonable but arbitrary Q as an appropriate retribution for P.
The problem of this method is of course that we still cannot perfectly equalize the costs of P and Q, implying that perfectly fair retribution is impossible anyways. To successfully find the resolution to this aporia, let us go back to the beginning at this point.
(*J) The offender’s offense P can be fairly retributed by implementing Q, such that Q is based on consistent and reasonable retributive criteria based on the consideration of the motive behind the offense, the type of an offense, rehabilitatability, et cetera.
(*K) Fair retribution toward offenders is possible.
Because our task was to figure out whether (*K) is true or not, we have two possible strategies: (i) to find the contents of Q that are proportional to P, or (ii) to simply show that (*J) is possible, What I have done throughout the previous discussion was to use strategy (i) to prove (*K), and we have concluded that at least some kind of (either fair or nearly fair) retributive criteria must exist for our society. But we need more definitive resolution─simply attempting to equalize the costs of the damage caused by an offense and that of corresponding retribution is not sufficient to conclude that fair retribution is possible. Let us use the second strategy now in order to tackle this problem.
The advantage of (ii) is that it is not necessary to know the specific contents of Q, for what we need to know, ultimately, is whether it is “possible” for Q to exist. If perfectly fair retribution is possible, this can only be the case either (1) through absolute justice laid by a transcendental being, or (2) through relative justice artificially formulated by human contract or agreement. The former is what we call justice of God; because God is omnipotent and omniscience, fair retribution can be achieved, on the assumption that such a transcendental being is in charge of the judicial process. On the other hand, the latter is based on relativism, as justice via agreement is changeable. Still, fair retribution will be possible because it can be prescribed and defined through such contracts. For this reason, fair retribution via deity would be based on unchangeable retributive justice whereas fair retribution via social contract would only work through axiomatization of certain sets of moral precepts based on changeable retributive justice. In either case, fair retribution should be possible by definition.
One may criticize at this point that the latter may allow unequal retribution, and thus judicial rules derived from such contracts are inappropriate and even insufficient to achieve fair retribution. Fair criticism. Unfortunately, though, (1) using words such as “unequal” and “equal” seems to presuppose that the concept of equality is independent of human agreement. But, if judicial axioms are mere human creation, why in the first place assume that the concept of equality is per se independent of human creation, or even that retributive justice is defined by equality and fairness? Maybe this is because we do in fact derive justice by equality, fairness, et cetera. So, realistically. retributive justice via social axiomatization is insufficient─there got to be something more than that.
As Locke points out, natural law is a good candidate, though this is not much different from appealing to justice of God. In any way we define justice, we face this problem of axiomatization─that justice is relative. But what does this mean? While justice can be culturally relative, justice is universal at least within the domain of the society in question. Though it appears to be impossible to tackle moral anti-realism and relativism without appealing to intuitive judicial axioms and at the same time go beyond the social agreement, axiomatization of natural law and thereby defining justice in light of natural law seems to be the best option we have got; after all, the Declaration of Independence, too, axiomatizes natural law to solve this problem: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
Because fairness can be deduced from natural law, fair retributive justice can also be deduced from natural law. This of course does not necessarily mean that fair retribution is possible. It is rather an open question. However, with an assistance of natural law and positive law built upon it, we can ascertain a set of sentences that form the necessary and the sufficient conditions of fair retribution and apply it in real-life so that (1) the cost of the implemented retribution is closest possible to the cost of the damage and that (2) the implemented retribution maximizes the net happiness of individuals concerned. Since human beings are imperfect, so does judicial decision. But this doesn’t mean that we cannot try our best to promote social stability, public good, and individual happiness and freedom. We improve precisely because we are imperfect. Hence we can end this exploration of fair retribution by contending that fair retribution ought to be possible, for without positing this retributive justice becomes meaningless and vague. That fair retribution is possible is in this sense the major premise of constitutional jurisprudence. Donc Voila! Justice is not justified─it’s given.
