Our Justice System Needs an Update—an Update that Goes Against the Law

Let’s start with pointing out the glaring irrationalities of the criminal justice systems of today—in functional liberal democracies, that is. We may leave aside the more obvious case of autocratic or corrupted systems. We may even leave aside the critique of the irrationalities of the hyper-imprisonment practiced in the USA due to what appears to be the confluence of the economic incentives of the “prison-industrial complex” with racial and class biases. Let us target instead target the shared philosophical basis of liberal, democratic (modern) systems of law, even when they function as they purportedly “should”. This critique holds equally for the (largely Anglo-Saxon) common law and the (largely European) civil law traditions.

The somewhat gruesome public spectacle of the ongoing Johnny Depp and Amber Heard trial is only a case in point—whatever it is we’re watching, it is hardly a rationally organized process of finding the best solutions for healing of relationships, the restoration of personal dignity, and guidance towards desirable future behaviors.

“Equality Before the Law” Is Not Justice

If we take these goals (relational healing, protected personal dignity, and behavior change in pro-social directions) as being the “rationally desired” outcomes of our judicial processes, it is difficult to see why the current consensus of criminal justice would be the best possible one. It works, one way or another, like this:

• The parliament decides, through a majority vote, upon the legal consequences for a certain crime or transgression, while giving an as clear as possible definition of that transgression: say, murder or theft results in the sentencing to a so-and-so long term in prison.
• The justice system ensues a chain of events, from the reporting of the alleged crime, to the investigation into the matter by police and prosecutor, to the trial with a defense by an attorney and the sentence by a judge (and/or citizen jury).
• The sentence takes effect and the parties are subjected to the consequences of the trial: parties may receive new rights and obligations (such as getting compensated by the other party, staying away from the other party, or going to prison).

On the face of it, to our common sense, it appears as though “justice has been done”. People were held responsible according to the laws that were laid down democratically, equally for all of us, and they had the same opportunities as everyone else to know the law and to act in accordance with it. But this view misses a deeper point: There is no rational reason to believe that what was decided upon in a completely different context (a parliamentary promulgation of a piece of law code) can and should lead to the most desirable outcomes for the parties involved in this specific little tragedy, including for the “victim” or injured party, and the public. No argument is made for why specifically “six months in prison” makes good or repairs this particular transgression, say, the theft of a car. Will the victim feel vindicated? Will the thief learn their lesson? Will the public feel that justice has been done, and will it be protected from further thefts? We just don’t know.

Whereas our legal systems do, after all, have considerable leeway for case-to-case adjustments (there are scales of sentences, age limits, ameliorating circumstances, and so forth), they are—on the whole—not capable of truly managing the unique complexities of each social situation, of the specific tragedies of the humans involved: their narratives, their emotions, their behavioral responses. To sum it up, we could note that:

• The communicative process of the trial itself is not optimized for personal expression and mutual understanding—and this means that the parties communicate at, to put it mildly, a less-than-optimal level of clarity and self-knowledge.
• The parties involved in the trial are not supported to deal with the often exceedingly emotionally difficult situation that the trial entails.
• The actual emotional and material needs of the victimized side are not brought to the fore, nor sufficiently developed to their end-point: Do they seek safety from further transgressions by the offender, do they desire revenge, do they seek the restoration of personal dignity, do they wish to hear a sincere apology, are there economic or practical needs that should be addressed?
• The legal sanctions, punishments, or other consequences are not argued for in terms of behavioral-scientific terms, given the specific profiles of the people involved—they are simply assumed to be “just” because “the people” (represented by parliament) have laid down a certain law.
• The actual results in terms of healing, restoration of dignity, and behavioral changes (or learning, or new self-awareness, or changes of attitudes) are not followed up upon, recorded, and learned from for future cases.
• No list or battery of different possible, case-tailored, interventions is consulted and drawn upon for the optimal expected results given the specific personal profiles and needs of the parties (nor are the results of such interventions recorded for future uses).
• And, as already in part mentioned, no psychological-behavioral profiles are made of the parties that would help predict which interventions would be the most likely to have desirable long-term effects.

In short, there are very little “rational” processes involved in our systems of justice. Rather, the prevailing sense of justice appears to be based upon a kind of “civic religion”: We have faith in our police, prosecutors, attorneys, and judges as enactors of an abstracted “will of the people”. The early system of laws from Babylonia, Hammurabi’s code, purportedly rested upon inspiration from the god Marduk. Perhaps, today, we are not all too different—except our “god” is this abstracted “will of the people”.

But when we turn to this “the people” as the source of our justice and all judgments made, it seems to dissolve into thin air: who exactly is it that wills that this particular person should be sentenced to six months in prison, not four, nor seven? Popular sentiments very often wish for fiercer punishments and feel outraged at how easily many of our criminals get off the hook after even the cruelest behaviors. It is quite clearly not the people or community that genuinely “wills” the sentences into being. And by what rational arguments do we make such drastic interventions? If we, for instance, by force imprison a person, would it not be reasonable to ask of our justice system that it has genuinely sound, case-specific, arguments for doing so—in that particular case?

Or to put it differently: The decisions made by our courts are arguably as crucial and important as the medical decisions made by doctors or psychiatrists. Would we trust in the soundness of medical decisions that were based not on diagnostics of the specific case and best practices according to medical science, but upon fairly arbitrary rules of thumb laid down by “the will of the people”? If your doctor did not take tests and consult medical journals, but simply said that “the law states that a person with your condition should have this treatment”, would you feel that “medicine has been done”?

It is, I feel, safe to assume that we would find such a procedure neither safe nor sound. Why then do we so willingly accept this level of arbitrariness when it comes to judicial procedures and the dramatic results they bring? Why are we so surprised—even perpetually shocked—when different courts reach wildly different conclusions in the very same cases, resulting in opposite verdicts?

This should arguably lead us to question the very principle of a certain “sacred cow” of modern society: namely, our equality before the law. Maybe we cannot be truly equal—perhaps we shouldn’t even be equal, because what appears as surface-level equality is truly an institutionalized insensitivity to what every situation calls for. Perhaps, in some cases, imprisonment makes perfect sense to remedy some of the ills of a crime, whereas, in other cases, the very same intervention can be entirely detrimental for all parties involved. If we truly care about the fate and well-being of the parties involved and the effects upon the larger community— if justice and care are combined into one—should we not wish for a more case-tailored form of justice? Such a justice may, at the surface level, appear less equal. But the results it produces could very well be in service of a deeper, underlying equality:

• Equality before the law does not mean that the same law applies equally to everyone, but that the same processes of finding the best solutions are the inalienable right of all citizens.

I have thus come to believe that the justice systems of the future would be more akin to how we today approach medical or psychiatric procedures. Medicine and psychiatry are of course, to say the least, no angels. They are subject to all the biases of corruption, economic incentives, personal interests, undue mutual dependencies, bureaucratic fallacies, and misuses of power that mark all parts of society. But at least they do build upon a rational-scientific ethos that, in theory, tailor every intervention to the specific diagnostics of each case, working according to the best practices to try to predict the most desirable outcomes. It is that principle I am after.

Beyond Restorative Justice

No doubt, some readers will be familiar with the Restorative Justice movement and its theory proposed by criminologist John Braithwaite. The idea here is to create dialogical processes that lead to resolution, forgiveness, healing, mutual understanding, and repentance of the involved parties. While I have considerable sympathy for this position and its ambitions, I also believe that its failure to spread and take hold in our institutions over the last decades ultimately comes down to its exaggerated emphasis on “soft values” (or what I have termed “game denial”). Not all situations can realistically be treated in mutually enriching dialogues under the guidance of well-intentioned mediators: there are violent crimes, rape, extreme animosities, false accusations, and of course, manipulative and anti-social persons who squarely lie. Dialogues in such situations can be destructive and even traumatizing. The same system of thought also has difficulties dealing with the very real existence of the monopoly of violence: supposed perpetrators “must” come to the dialogue table—but who exactly enforces this “must”? Furthermore, Restorative Justice downplays the role of moral outrage and the sometimes arguably justified need to seek punishment against transgressors; the wish for revenge is a strong and ubiquitous human emotion that must also be allowed its place—and even in cases where it is not deemed to be justified, it can only be ignored at the peril of further raising social tensions.

A further development, in my view, has been suggested in the guise of the Therapeutic Jurisprudence framework, associated with legal theorists David Wexler and Bruce Winick. It takes as its starting point that “law as a social force (or agent) […] inevitably gives rise to unintended consequences, which may be either beneficial (therapeutic) or harmful (anti-therapeutic)”. Simply put, this discipline tries not so much to make justice as “nice as possible” like Restorative Justice arguably does (which thus reflects what I view as a “postmodern” position on justice), but rather seeks to academically establish “what really works” in terms of the interventions of the justice system (thereby nearing what I take to be a “metamodern” position). It has no principled argument against punishments, as Restorative Justice has—it just holds that any measure taken, including the trial itself, should be scrutinized for desirable and undesirable consequences.

The Therapeutic Jurisprudence position is closer to my own, but to my knowledge its adherents have yet to formulate a comprehensive vision of a truly therapeutically functional justice system. To the followers of Therapeutic Jurisprudence, the goal is not to reject the entirety of our current legal systems, but to improve upon their functioning by means of careful research into the real consequences of different judicial procedures.

Protopian Justice

This latter point, to offer a paradigmatic alternative to our justice system as a whole, is what I would like to sketch in the following, drawing in part on both of the mentioned traditions, Restorative Justice and Therapeutic Jurisprudence.

I would thus summarize the vision a future, metamodern or protopian, justice system as follows:

• Thetrial itself is viewed as a major communicative event with great social consequences for its parties and the wider community. Thus, the trial begins with a phase of “communicative preparation” through which specifically educated expert mediators interview the parties (individually, not together) so as to help them clarify and advance their respective positions: What is their narrative through which they make meaning of the events? What do they truly want? What are they afraid of? What emotional needs do they have? Can they be brought to reach greater peace and clarity about what they seek to achieve and what their interests are? What is it they wish to express or communicate?
• The court takes stock of the psycho-social parameters of the situation: Who are the people involved, psychologically speaking? A bar fight between two 20 years old men is arguably different than a fight between two 80 years old ladies in a nursing home, even if the factual circumstances may converge (a jug was smashed against a forehead, etc.). Collect relevant data, so that more desirable consequences of the trial can be predicted.
• This data is stored and compared to a wider battery of possible interventions, and different interventions are weighed for pros and cons in the given situation, with an eye to the specific profiles of the people involved (including their psychological, social, and psychiatric profiles).
• A larger and wider list of possible legal interventions is collated across many trials, so that the window of possible options widens as the legal system develops through new cases in court. Agents from across society—public, private, and civil society—are allowed to offer interventions that are scrutinized for empirical results and can thus be added to the list.
• The court proceedings themselves are guided by the aided communication of expert mediators, where the parties are encouraged to express their genuine interests and emotions along with their version of “the truth” of the events that occurred, with sensitivity to the larger social situation as a whole.
• The court reaches a verdict by arguing that their proposed intervention will have the best possible (or least possible negative) consequences for the parties involved, especially in terms of support for the “victims” of crime. This is done by referring to empirical data on 1) this particular set of interventions for 2) this particular type of persons in 3) this particular kind of situation. If no such relevant data can be found, the next best empirical data are generalized from and argued from in terms of deductive reasoning.
• The social, emotional, behavioral, and community results for all parties involved are followed up upon within a relevant time frame, evaluated according to standards of empirical research, and recorded. If the results of the interventions are deemed undesirable or insufficient, the court decision may be corrected and a new set of interventions set in motion.
• Upon the making of the verdict, a communicative process is initiated with the parties involved to explain the reasons for the verdict, according to communicative strategies suitable for a person of their personal profile (a young, banlieue gangster may need another way of being fully informed about the verdict and its rationale than an educated, white-collar tax evader, etc.) This communicative process continues for some time until the greatest possible peace has been made with the verdict and the parties, if possible, can explain its effects and rationale in their own words. They may not agree with it, but to maximize the level of support for the verdict, this is a very important—and today entirely overlooked—step.
• All collected data goes in a public database, where “big data” crunching allows for the legal professionals to search predictive, behavioral data on the best possible outcomes of interventions for this particular kind of case with these particular types of persons with these particular interests. This data base largely replaces the common law practice of precedent(a principle or rule established in a previous legal case; also a thing in civil law). This avoids issues of “path dependency”, through which a legal intervention can take hold and keep existing for long despite its negative consequences or lack of evidence for desirable consequences.

In short, we should build our legal system on a combination of curated communication, behavioral science, and a growing public “big data” base of empirically verified knowledge. As such, each legal intervention should be, not perfect, but at least as well-argued as it possible can be at that point in time.

We must never lose from sight the fact that the court proceeding are in and of themselves an exceedingly important event in people’s lives. This is, by the way, why we keep making court process movies: they are dramatic performances where meaning and truth are decided upon by the community—and the communication that takes place in the courtroom can sometimes, or often, be of greater consequence than the verdict itself. There are cases in which this is fairly obvious: I once watched the live trial of two early teenage girls who had been caught shoplifting for cheap fashion—and, of course, the main event was not whatever sanctions they suffered, but that they had to face an awkward situation and be reprimanded. But the same can arguably be said of many other courtroom dramas. These have effects upon the people involved, upon society at large. These effects must also be optimized for. They are an inherent part of any justice worth its name. The future of justice must thus remove not only the arbitrary element of the verdicts themselves, but also the arbitrariness of the communicative processes that lead up to them (which, in turn, also affect the quality and rationality of the resulting verdict).

I have thereby presented an argument that flies in the face of another sacred cow of modern society: “the law” itself—here viewed as a secular, modern form of religion. We should, in a sense, further secularize our legal system, because we all deserve a more socially sensitive and well-argued practice of legal justice than the one we currently have. It is for this reason that I in the title of this article argue that we need to go against the law. To be for justice must ultimately mean to be against “the law”. “It’s the law” is just not a good enough argument for such serious matters as legal interventions enforced through a monopoly of violence. It’s a tautological argument, hardly case-sensitive, and lacks all rational basis.

With the system I have proposed above, we won’t be as “equal before the law”, but we will consistently get better results from the legal system, and thus greater justice in our lives, including values of deeper equality.

What I suggest is ultimately that we move from one level of abstraction in our relation to “the law” and justice, to another, higher level of abstraction. Although all societies need norms to function and to thrive, it should come as no surprise that different norms can and should apply in different settings and situations. What binds the norms together would instead be a set of “meta-norms” (i.e. norms about norms) which help regulate which norms should apply and when. To discuss the meta-norms themselves falls outside the scope of this article, but the matter has been treated in Daniel P. Görtz and Michael Lamport Commons’ 2015 article that discusses the paradoxes of how the standards of care are always changing, and thus legal disputes about them cannot simply be settled with legal precedents. Basically, we need deeper principles—meta-norms—that help us argue for how norms are locally created in each new complex situation, and why they can and should apply there. As such, we begin to uphold not monolithic, rigid norms, but a more resilient network of norms tailored to each situation.

We are thereby not “equal before the law”, but equal before the meta-norms. This may superficially look like lesser equality, but, as I have argued, it reflects a deeper, underlying equality between citizens.

At the fundamental level, this proposed model of justice is an update of our legal institutions in terms of their capacity to manage “chaotic situations”, as I have earlier argued is increasingly needed for our societies to function as the complexity of social life increases. Because a butterfly’s wings can shift the storm, we need greater precision and case sensitivity in our legal systems. If not the precision of a the batting of a butterfly wing, at least approaching that as closely as possible.

Failure to update our institutions accordingly (to the new realities of increased complexity), I believe, can and will result in an increasing number of institutional failures that stack up over time and keep causing irregularities and confusion, the beginnings of which we are already seeing across the world— ultimately resulting in the loss of legitimacy of these same institutions in the eyes of the public. And that, my friends, spells social decay, if not collapse.

You Can’t Afford It!

No doubt, this form of justice would be more labor intensive and thus expensive than the current one. On the other hand, consider these points:

• The current, modern, system is already considerably more expensive than its medieval forebears. And yet, despite its great costs, it is something we willingly pay for to achieve even a modicum of “legal certainty” (that miscarriages of justice or undue influence upon the courts are minimized and so forth).
• Given the exceedingly high expenses incurred by each and every failure of justice—from continued crime, to the unhealed wounds of victims, to wasted time in lousy communication processes, to failing support for the justice system, to the negative social consequences in people’s lives, to the sheer mockery that the media can make of our trials—consider how many costs are actually saved. Effective justice is the hallmark of a good society. Do we really wish to pay the long-term price of an increasingly ineffective justice system?
• And, most basically, institutional reform is always costly, but sooner or later always necessary. The societies that make wise, long-term investments are likely to reap the benefit. Those who refuse to pay the premium will have greater prices to pay along the way.

As we move forward with experiments with protopian forms of society, it is my dearest hope that reforming the justice system in such settings will be a top priority. Without a justice system that goes beyond the modern impasse, and leads the way to metamodern futures, it is highly unlikely that such systems will be able to survive and take root.

The myths of “the people” and “the law” have served us well, at least since the Code Napoleon and the Bürgerliches Gesetzbuch. But the people is not a monolith with one sacred will; it is a chaotic collection of specific personal situations and tragedies, each of which deserves to be heard and met in full, according to its own premises. And the law can only truly be just and equal if it takes that into account. Thus I hold that we must dispel the myths of “the people” and “the law” in order to move towards a justice worthy of a more listening society.

—

Hanzi Freinacht is a political philosopher, historian, and sociologist, author of ‘The Listening Society’, ‘Nordic Ideology’ and the upcoming books ‘The 6 Hidden Patterns of History’ and ‘Outcompeting Capitalism’. Much of his time is spent alone in the Swiss Alps. You can follow Hanzi on Facebook, Twitter, and Medium, and you can speed up the process of new metamodern content reaching the world by making a donation to Hanzi here.