England and the spirit of law

Let me begin with this triviality: the core of civilization lies in the balance between liberty and justice.

LIBERTY

Liberty is central because its deprivation is a threat to the survival abilities of individuals: freedom of choice is what guarantees that one feels responsible for his or her personal development in life, therefore for what he or she counts as a better way of surviving harmoniously in society. There is an automatic positive cognitive response to the concept of liberty: words of freedom are thus very constantly used in political discourse to attract consent by the audience, together with a number of other 'keywords' (a concept well established in contemporary discourse analysis). Similarly, there is an automatic negative cognitive response to concepts evoking the lack of liberty. Some politicians also tend to make an overuse of this mechanism in persuasive discourse, for example when it comes to assert that Europe is a threat to the liberty of individuals, or that the State is in itself a threat to individual freedom. In some cases, it is of course true that the liberty of nations and people can be affected by external factors, just as the financial management of States is currently affected by debatable downgradings by rating agencies. In other cases, limits are set to individual freedom by the country's laws, and to States by international laws and treaties.

JUSTICE

Justice is central because it regulates society so that everyone owns a similar amount of freedom, thus no one is contained by an excessive exercise of liberty by other people. However, there is much less automatic positive cognitive response to words of justice, probably because justice as a principle is a regulator, therefore a potential diminishing, of liberty. Justice is felt intuitively as lowering freedom. For some, it might need more education to bring about awareness for justice so that justice is no more felt as a threat, but as a desirable regulation to which people personally subscribe.

Justice is a more complex matter than freedom. Justice is a meta-concept operating on that of freedom; it's an intellectual apparatus that implies to take into account the others' spaces of freedom, not only mine. Justice is the social management of freedom. This is a reason, maybe the main reason, for which justice is not grasped equally intuitively by all. Even more: the spirit of justice, that is, the spirit of law and punishment, or in other words, the rationale behind the existence of juridical institutions, or the principles governing law and punishment in the society, is acquired by studying it in law schools after centuries of intellectual reflexions.

Yet at least in Western societies (the question whether what follows is true universally or not is not in question here), these long acquired principles are not uneasy to spell out easily. One among them looks very important: only the person who breaks the law is to be punished and no one else. In other words: there is no punishment to be thought of about someone who did not break the law.

In the Soviet Union, as in most dictatorships, this principle was not applied. The Governments tended to use the juridical institutions in order to decrease the risk of revolts, or whatever other social risks. If one member of a family was convicted for anti-revolutionary activity, then the whole family underwent various kinds of punishments, and was classified as anti-revolutionary.

This principle (no one is to be punished if he or she did not break the law), whatever obviously right it may seem, implies as a (trivial) logical consequence that no one can be punished only on the grounds that some authority simply thinks that he or she "might" break the law in the future. In sum, this principle avoids the Authority to punish, to jail for example, someone in a preventive way, just in case that person could break the law. This principle was not respected by the US after 9-11, when the Authority jailed people in Guantanamo without clear criminal record (nor trial even). This principle was of course neither applied by dictatorships who instrumentalized the institution of law and punishment in order to use it as a means of containment for opponents or potential opponents. In the end, it is from the same principle that derives the forbidding of collective punishment in international law (a principle typically broken by dictatorships).

That this kind of behaviour from the State is approved or not by a majority of people is a complete other matter. Democracy is not about applying the simple opinion of the majority on anything but about electing people who will decide on documented grounds.

RIOTS AND SOCIAL BENEFITS

The British government has announced that the parents of teenagers who participated to riots will be deprived from social benefits (the mother of an 18 year-old in Wandworth already received an expulsion decision from the City Council). This is either a collective punishment for the whole family, or more simply a punishment for the mother, while being the mother of a criminal does not make you a criminal.

As Simon Hughes points out (Guardian, Aug. 14th), a responsible society is that where everyone knows his duties, which implies that "we must not cut taxes for the rich or public support for the needy." This is a humane principle which also has to do with justice in some wider sense. But in the narrow sense of law and punishment, parents (who did not break the law, neither if they are totally foreign of the actions of their uncontrollable children, nor if they did not bring the good example themselves) are being punished for other people - their children - breaking the law. The choice of depriving them of social benefits they are entitled to is certainly demagogical since it sounds apparently acceptable from a shocked public opinion who may easily come to think that the parents are responsible in the first place for not handling correctly their children (but ask a single mother of Tottenham how she can deal with her 18-year old when subsidies to local associations are cut?). But in the end, it is only quantitatively dissimilar to jailing the parents together with the kids when a kid commits an offense. In any case, someone who did not break the law, whatever responsibility they may have or not in their kid's behaviour, are punished.

One could say that social benefits are provided by generosity from the community to people who then have the duty to respect the values and laws of a country. Certainly true - although when the benefits are inscribed in law, the question of generosity, which is a human attitude, is no point, only the blind law applies. What is generous, what is responsible, how should the parents behave or not behave, all this is a matter of debate for moralists of all kinds, not a legal question. And its certainly good like this: people may have very different opinions on every matter, including education and politics of course, but everyone is committed to the law, the right, its absence of opinions (that is, its blindness), grounded on the above principles (among others). Law and punishments have nothing to do with what individuals, be it the majority of people, think it should apply.

Justice is blind and has to stay so. Whenever its veil is unfolded, that is, whenever justice begins to be thought of as a matter of societal or governmental instrument of managing costs and benefits, of whatever nature, civilization simply regresses and obscurantism arises.