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We seem to have a problem with justice

Should justice be a matter of interpreting law or a matter of rewarding desert?

By on Monday, 16 May 2011

"Lady Justice" by the British sculptor, Frederick William Pomeroy, Photo: PA

"Lady Justice" by the British sculptor, Frederick William Pomeroy, Photo: PA

We seem to have a problem with justice. Just recently, a Sri Lankan
robber, sentenced to 15 months, was spared deportation at the end of his sentence, on the grounds that he had a girlfriend in this country, and that deportation would deprive him of his right to a private and family life, which is a right guaranteed by Article 8 of the European Convention of Human Rights.

This recalls a similar but more serious case where a hit and run driver was also spared deportation on the grounds that he had a child in this country. The same legislation has been used to keep the murderer of the Catholic Headmaster Philip Lawrence in the United Kingdom, something that led the then Leader of the Opposition to call for the scrapping of the Human Rights legislation back in 2007.

There are some obvious problems with this sort of human rights legislation. One aspect is historical: to what extent, if any, does human rights legislation form part of the English legal tradition? England does have a Bill of Rights, but we have no written constitution.

Again, on what basis do universal human rights rest? This question has been put by the great Alasdair MacIntyre, and has never, to my knowledge, been satisfactorily answered. How was it, MacIntyre asks, that no one ever really spoke about universal human rights before the Enlightenment? Do our judges who make these extraordinary decisions seriously wish to claim that the right to a family life is some sort of inalienable, intrinsic, or even God-given, human right, with which the state has no authority to interfere?

But what is most clear about these cases is the way lawyers have used legal procedure effectively to prevent justice being done. A piece of legislation which may never have been intended for use in this way is providing an escape hatch for criminals. These men ought to be deported. As foreigners, they are in Britain as a privilege not of right; if the state wishes to deport them, then the state ought to be free to do so. If you come into my house, with my permission, I am free to revoke that permission as and when I please; no one would dream of criticising my decision to throw you out if your behaviour was not to my liking.

As for the paltry excuse of a right to a family life: do the inmates of our prisons have a right to a family life? Of course they do! But they have temporarily lost it for the duration of their sentence. If the right to a family life were inalienable and inviolable, then no one would ever be imprisoned.

In the end, this is really a question of which model of justice you wish to use – a question tackled in MacIntyre’s excellent book Whose Justice? Which Rationality?

Should justice be a matter of interpreting the law, a purely neutral procedure? Or should justice be a matter of rewarding desert, giving to each his or her own, giving to each what he or she deserves? If our judges believed in justice as desert, these criminals would have been sent home long ago, and invited to pursue family life in the countries of their birth, on the simple grounds that their anti-social behaviour means that they do not deserve to live here. But – and here is the hitch for our secularised and value-light or even value-free society – justice as desert depends on having some shared vision of what good human behaviour should be.

This difference between justice as the result of some neutral procedure, where the procedure itself will somehow guarantee justice, and justice as the rewarding of desert, what the philosopher John Rawls calls the difference between the right and the good, is hugely important. Rawls himself believed that the right and the good would coincide, but only if the procedure were the correct one. The current procedure in interpreting the Human Rights Act, which produces such wrong results, clearly needs to be changed.

  • Anonymous

    Father I’m sorry but I haven’t a clue what you’re trying to argue:

    …and from what I can see you’re terrifying me.

    Alice More: Arrest him!More: Why, what has he done?Margaret More: He’s bad!More: There is no law against that.Richard Roper: There is! God’s law!More: Then God can arrest him.Roper: Sophistication upon sophistication.More: No, sheer simplicity. The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal.Roper: Then you set man’s law above God’s?More: No, far below, but let me draw your attention to a
    fact– I’m not God. The currents and eddies of right and wrong, which you
    find such plain sailing, I can’t navigate. I’m no voyager. But in the
    thickets of the law– oh, there I’m a forester. I doubt if there’s a man alive who could follow me there, thank God.Alice: While you talk, he’s gone!More: And go he should, if he was the Devil himself, until he broke the law!Roper: So now you’d give the Devil benefit of law!More: Yes. What would you do? Cut a great road through the law to get after the Devil?Roper: I’d cut down every law in England to do that!More: Oh? And when the last law was down, and the Devil
    turned ’round on you, where would you hide, Roper, the laws all being
    flat? This country’s planted thick with laws from coast to coast– man’s
    laws, not God’s– and if you cut them down—and you’re just the man to do
    it—do you really think you could stand upright in the winds that would
    blow then? Yes, I’d give the Devil benefit of law, for my own safety’s

  • Jason Clifford

    When you consider the right to family life you are considering not only the rights of the specific individual (the criminal in the cases you refer to) but also the same right to family life of all of the members of their family who are affected by the decision.

    Your proposed views are entirely too narrow as they do not consider the rights of the other family members whereas the courts have done exactly that in these cases.

    You state that a criminal can have their right to family life elsewhere. That approach, which can be summed up as “make him someone else’s problem”, becomes a punishment of the innocent others in his family.

  • Confused of Chi

    Maybe the ‘convicted’ should have considered his own ‘family’ before imposing his will on others!


  • Anonymous

    So it is fine that his innocent family is punished? Yes, that is his fault. HIS and NOT his family’s – yet THEY are still being punished.

    What you are saying is that innocent children should not be brought up in a stable family, because of the idiocy of their father. A very poor moral standard if you ask me.

  • Anonymous

    A number of points for you to consider.

    1. The family of the hit-and-run husband, is punished because of the husband’s idiocy. And yet they are as innocent as anyone else.

    Where is the moral benefit of removing a father away from his son? …And I thought the Church was concerned about broken families?

    2. ‘Legal tradition’ Is completely different from morals. Law MAY be moral as a consequence, but we should not rely on it for morals.

    3. Don’t de-value human-rights because they are not perfect. Was the world any better before the freedom of speech?

    4. Justice is a prison sentence, THAT is the punishment. Deportation is not related. If they are found to be here illegally then that can be tackled.
    However, it is of NO relation to the punishment for their crime.

    5. ‘right to a family life’ Oh, so the Church is only for ‘family-values’ when fighting against gay-rights, now I understand…

    Father, you are consistently missing out the most vulnerable, and totally innocent parties from the equation. The wife/girlfriend and the child.

    You put a higher emphasis on punishment, then the success of a family – and of their child. The punishment of a crime – above the protection of innocents.

  • Anonymous

    The notion of universal human rights, whatever its historical origin, now has a central place in Catholic discourse on social matters. This seems to me appropriate, as the irreducible dignity of each human being is surely a vital part of the Christian message.

    Your argument that the ECHR is alien to English legal traditions I would say is irrelevant. Many people would say that Catholicism is alien to English traditions (at least those of the last 400 years) – this does not make it untrue.

    I would have thought that the Catholic position is that justice exists independently of there being “some shared vision of what good human behaviour should be.” After all, this is a fallen world – amidst our imperfect judgements and half-truths, the perfect justice of God still is.

    I would also have thought that we should be favourable towards a right to family life, and inclined towards forgiveness and rehabilitation.

    Altogether, a somewhat confused post.

  • Alexander Lucie-Smith

    Actually, I am not so sure I am confused on this one. I stand with MacIntyre in believing that justice is a practice extended over time; and it is desireable at the very least to practice justice with a vision of the good, which also must spring from a tradition. I am not convinced that the human rights path is the one to take when it so clealry does not lend itself to a communitarian vision; but rather seems to characterise us all as endlessly litigious. MacIntyre talks at various points about the exclusion of certain people from the community in order to guarantee the wellbeing of the community. St Paul, incidentally, was happy with that.  So was Plato. The idea is even found in canon law. But I agree this is a difficult one, and my aim in the post was to try and point out that this is not a disagreement about practice, but a disagreement about theory.

  • Anonymous

    You make an interesting point with relation to the historical associations of human rights discourse – it does seem to have arisen at just the time that Western societies began to morally fragment.
    With respect to Alasdair Macintyre, I think he makes a superb critique of modern secular societies, but I am not sure that his defence of the Thomist/Catholic tradition is sufficient. If I understand correctly, he suggests that the precondition of morality is a society which can sustain a moral consensus. If this is right, then it is hard for us to claim that a Christian society is superior to, say, the Pagan Athenian polis (which held slaves) or a medieval Hindu city (ordered on the basis of a caste system).
    It seems to me that you are right to stress the importance of a community of values which extends through time, but in order to say what these values should be we must have faith, and ultimately appeal to revelation. In the sort of society in which we live today, it seems that we need to argue not just that traditional practices be preserved, but that certain types of practice are superior to others.
    Also, I find it worrying if the creation of a moral community is seen to depend upon the exclusion of some of the most vulnerably people in our society.

  • Alexander Lucie-Smith

    Thanks for your highly informed and reasoned reply. MacIntyre does somewhere address the issue that you mention on how do you choose between one narrative  or another  – but I cannot now remember where; though I do know I devoted some space to the matter in my own book on the subject…. I don’t have a copy to hand, otherwise I could look it up.

  • Anonymous

     I think Fr’s argument about ordinary convicted criminals covers this Paul – I’m more worried about laws becoming conditional on certain arbitrary and potentially totally unrelated activity. Just because certain people who shouldn’t benefit from a law – do benefit – doesn’t mean you should start fiddling with the universal ideal of the law.
    English Law is built upon moral absolutes with mitigations.- ontological ;actus reus’ and teleological ‘mens rea’.
     Appeals to Human Rights aren’t – they’re consensual ‘minimal codes of practice/standards ot treatment’  –
    fundamentally they are grounded upon a utilitarian socio-contruct disguised as an ontological framework.

    The UDHR is a sham – a fraud in that what it says has nothing to do with what it legalises and doesn’t proscribe; [remember when Rwandan genocide was occurring and the UN copped out by saying it wasn't officially genocide - but only 'acts of genocide'?] and usually the UDHR doesn’t make a blind bit of difference if the US wants a country to do what it tells them [think the UK and extradition and extraordinary rendition with the US - a big gun and wallet still gets what it wants...]

    …but irrespective to this – what are human rights in this paradigm?
    Ironically for all the proud talking and aspirational ‘visionary’ fluff and guff…
    They’re grounded upon the bigotries of good taste and good manners….

    Therefore they really provide no defence whatsoever – because a] they are arbitrarily consensual
    b] they can change!

    Ever heard of ‘the rights of the foetus’ which radical feminism and eco-politicians are seeking to be added to the UDHR?
    You should read the varying versions of it – the diabolical evil of the mendacity behind it  – out of appeals to the dignity of the foetus [i.e. deserving to be born into a stable,safe, socio-economically secure environment and being 'wanted' by one's parents who are deemed worthy to be parents] it is actually an abortionist’s manifesto advocating systemic genocide of the unborn!

    Be afraid – but be more afraid of those who constantly seek to tweak and revise the ‘rules which aren’t rules’. We can all too readily fall into the fallacious appeal to authority of the last man standing and the appeal to pitying the underdog in the martyr fallacy..

    These appeals to appeasing the bullying powerful or placating the vengeful victim have already virtually annihilated the very concept of a conscience clause or the right to religious freedom – look how Obama and Clinton now solely refer to a ‘right to religious worship’ [which means nothing - and can be almost antithetical to  the very principle itself!] – We are not going to get anywhere if we fall into their trap…that’s why I don’t quite understand what Fr ALS is arguing.

  • Anonymous

    Paul I don’t know of many of the examples you talk about in detail, so I won’t comment. It makes interesting reading nonetheless.

    However, there is one point that I would disagree with you on. That is the idea of the UDHR being a ‘utilitarian socio-contruct’.

    Now as a proponent of the general principles of utilitarianism myself, I would say that this is a mis-characterisation. It may be very popular to bash utilitarianism at every turn, but that does not make it responsible for every law we take issue with!

    Every system of morals fails if taken to the extreme. The ethics of Rawls and of Kant – equally fail, and just as spectacularly. Anyway, that is another debate!

    The point I make is that by its nature utilitarianism has a PROBLEM with rights. A utilitarian must look at each case to determine the best course of action.

    One such example of one of the arguments against utilitarianism is the ‘ticking-bomb scenario’ – in which we ask whether it is morally acceptable to torture a terrorist in order to find the location of a ticking bomb – and therefore save hundreds of lives – whilst violating the rights of one.

    The answer to this question, from the point of view of a utilitarian – if taken from the very narrow view-point of our mind-game – is YES that it is morally acceptable.

    Obviously this would break the UDHR in that ‘torture and inhuman or degrading treatment’ is banned. Utilitarianism does not listen rights or rules in the same way as other philosophies – and finds it hard to institute them – as there will always be cases when NOT following the rule or right – will be a better option.

    This is far from a promotion of utilitarianism as a good moral structure to follow – in fact I am pointing out all of its weaknesses! Nonetheless, as a foundation for morals – and with some alteration – is the best basis I have found.

  • Guest

     Its in “Three Rival Versions of Moral Enquiry”, his Gifford lectures.

  • Anonymous

    Yes, thanks for your replies also, you certainly raise some interesting issues and it is a good idea to make Macintyre’s ideas more widely known.

  • Parasum

    “This seems to me appropriate, as the irreducible dignity of each human being is surely a vital part of the Christian message.”

    Talk of “the irreducible dignity of each human being” sits very badly with the Church’s use of torture, defence of slavery (for which see the late Cardinal Dulles), castration of boys for their voices, and its other legal measures against Jews, witches, homosexuals…the list goes on. What a pity the “the irreducible dignity of each human being” was not part of Church teaching before these infamies happened.

    “Your argument that the ECHR is alien to English legal traditions I would say is irrelevant.” It’s no part of the English legal tradition, but an extraneous growth foisted upon us by a lot of foreigners with a different legal tradition. That is why it is a (very) bad thing. So there is no parallel with Catholicism. English law is not based on Roman Law, but on common law – that is the difference.