Justice, not Fairness
Greg Ordy, June 1999
Our judicial system is a mechanism designed to find justice, not fairness. Justice is equal punishment for equal crime, without regard for who is committing the crime. Justice is said to be blind. All are subject to the rule of law. There is no escape or manipulation. This sounds harsh to me, not fair.
When I was a young, the classic debate dilemma was the man stealing a loaf of bread to feed his family. What was the correct way to view this event? My own take is that the man is a thief, and that is without dispute. He is guilty of theft. But, when it comes to sentencing, the circumstances come into play, and the punishment will reflect the circumstances. We have strayed very far from this sort of approach. Today, somebody will argue that the man is innocent because he is in an oppressed group. Perhaps he's simply poor, and therefore innocent. Maybe he had too much sugar, and he is not responsible for his actions. Excuse after excuse.
For most people, this confusion results from wanting the justice system to be fair, not just. That's misguided in my view.
Clearly a man stealing a loaf of bread to feed his family is different that a man stealing a loaf of bread to sell for drug money. They should indeed have different punishments. But we are creating way too much confusion and destruction of the common moral code by not recognizing that in both cases there is a clear cut theft. A crime that requires restitution and punishment.
In many cases, we mix up what happened with why something happened. Justice is about what happened. Fairness is about why it happened. When a loaf of bread is taken, we need to recognize that a theft took place. Doing so is indeed blind justice. Historically, Judges were given wide latitude in sentencing in order to take into account extenuating circumstances. Sadly, because of abuses in sentencing by misguided liberal judges (dating back to the 1960's), we have a trend toward no latitude in sentencing. This certainly does not serve fairness, and strains justice by taking away the one part of justice that had anything to do with fairness.
The misguided emphasis on why something has happened leads to bad ideas such as hate crimes and thought crimes. Here, the crime is purely one of thought, not action. This inverts and perverts the entire justice system by introducing hopelessly subjective standards. These hate and thought crimes usually follow a more traditional crime. There is not good reason to create this extra level of confusion. Consider murder between the groups that are emerging from what should be one pool of citizens. These groups follow lines such as gender, race, or religion. To me, murder is murder. Should we really care if it is within a single group, or crosses group lines? What message does that send to society if we start to create categories of murder?
Increasingly our justice system is becoming a mechanism to show that the government cares about us, and is trying to make things fair. It's not government's job to care about us, and it is certainly not it's job to seek fairness. We have families and many other institutions that can provide care and fairness. Let government stick to blind justice.
Copyright (c) 1999, Greg Ordy
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