Thursday, August 1, 2019

Perfect Justice

     The clerks turned to humor to kill time as they waited to learn what was going on. One of [Lewis] Powell’s clerks, disturbed by his boss’s memo the day before, drafted a phony opinion and gave it very limited circulation to the clerks’ dining room. “We believe the principle of executive privilege is important....This cases is different from all others that will come before the Court. The Court should be guided by a solicitous concern for the effective discharge of the President’s duties and the dignity of his high office.”
     “However, we’re deciding this case differently because Nixon is a crook and somebody ought to throw the son of a bitch in jail.”

     [Bob Woodward and Scott Armstrong, The Brethren, on the Supreme Court’s deliberations over the recordings of conversations in the Oval Office demanded by special prosecutor Leon Jaworski, in United States v. Nixon, 418 U.S. 683 (1974).]

     That forty-five year old case is considered one of the most significant Supreme Court cases of our time: specifically because it upheld the principle that no one, not even a sitting president, is above the law. The clerk’s joking “opinion” above illustrates what could result from the opposite principle: the notion that because “we” have decided a priori that some individual is “a crook,” he therefore lacks the protection of the law.

     After all, that’s one of the defining differences between “a government of laws” and “a government of men:” what the law explicitly dictates is superior to anyone’s opinions or convictions, regardless of the identity and stature of both the accuser and the accused. The strict maintenance of that rule is essential to the general conviction that “a government of laws” is what we have.

     It’s not really that way, of course. Prosecutorial discretion, police deceit and prevarication, evidence fiddling, “trial science,” the vagaries of courtroom combat, and other factors combine to render American justice something less than perfect. Of course, it should surprise no one that a human institution fails to be perfect in any sense. Humans aren’t perfect, so how could a human institution be better than those who create, maintain, and operate it? The flaws in our justice system are among the things we must tolerate to have a justice system at all.

     Having read all that, you may be wondering why the next segment of this screed concerns itself with baseball.

     Baseball is my favorite among the team sports. Being a lifelong New Yorker, I’ve been following the Yankees for as long as I’ve followed the game. When I lament the “Yankee strike zone,” a common complaint of this year’s team, other Yankee fans will immediately know what I’m talking about.

     Only yesterday, the C.S.O., as aware of the problem as I, brought this article to my attention:

     The Atlantic League announced Tuesday that their experiment with an automated strike zone will continue for the remainder of the season, starting Thursday night. The system mostly worked; players and managers were happy with it; even the umpire who gave it its inaugural run at the Atlantic League All-Star Game earlier this month thinks it’s a pretty swell idea, if for no other reason than it will get him off the hook with fans:
“People here in York love yelling at me when they think I miss a pitch. That part of the game is going to go away a little bit,” deBrauwere said. “I’m happy to blame the computer.”

     An umpire is willing to give up part of his imperial authority to avert the ire of the fans! Will wonders never cease? But I digress.

     A number of years ago, in an episode of C.S.I., lab chief Gil Grissom [played by William Peterson] opined that what fans most love about organized sports is the possibility of perfect justice: a set of objective rules that are enforced without reference to anyone’s identity. Needless to say, the “possibility” is somewhat diluted by the use of human observer-enforcers: referees and umpires. This is especially so in baseball, where it seems that every umpire has his own idiosyncratic definition of the strike zone. Because of this particular problem, many fans have shown an interest in the possibility that strikes and balls could be called by an automated system, just as are line calls in tennis.

     However, the possibility has a significant number of opponents. Many of them oppose the idea because it would “take some of the human element out of the game.” (No, they’re not all members of an umpire’s union.)

     Sort of cuts across the idea of “perfect justice,” doesn’t it? Over time, the robot ump could be brought far closer to perfection than any fallible human. Umpires are a support component to the game, not participants in it. Why would anyone prefer the less accurate human to the more accurate machine?

     I shan’t trouble to argue the case. I merely note it to illustrate that “perfection,” however conceived or defined, isn’t always at the top of supposedly reasonable persons’ priorities.

     “It didn’t have to happen.”
     I waited. He’d told me the story two hours earlier. He’d sat there in his kitchen, silent and motionless, ever since. I’d almost despaired of getting him to talk at all.
     “I should have ruined him. I should have put him in a wheelchair for the rest of his life.”
     “As I recall, you nearly did.”
     His head jerked up. “How did you know?”
     I drained my coffee and shoved the mug aside. “What do you think brought you to my attention?”
     “I didn’t see you.”
     I smiled.
     He rose from the table and went to the kitchen window, leaned on the sill and stared through the gloom at the lilacs and azaleas that adorned the northern run of his fence.
     “You were wrong, Malcolm. Kings haven’t died off. The world has just raised the qualifications to a level no one can reach. You’d have to have a heart of stone just to deal with Onteora.”
     “Justice is seldom perfect, Louis. Nor is it always possible to make it perfect. Tell me something: have you ever taken a life?”
     He whirled, color flooding into his deathly pale face.
     “Have you?”
     “A human life?” he croaked.
     “That’s the only kind a king concerns himself with.”
     He started to answer, but the words caught in his throat. He stumbled over it once, twice, then slumped back into his seat at the table and clutched at his temples.
     “If you have,” I said as gently as I could, “then you know the dilemma. There is no way to restore the victims of certain kinds of abuses. Murder. Torture. Rape. Nothing works, not vengeance, not money, not time and not love. But the thing has to be dealt with all the same. You do it, and you point to it, and the world learns that as long as you’re alive and capable, there are some lines that it’s death to cross. And you learn that punishing the worst offenses takes nearly as much from a king as from the miscreants he executes.”
     The ghosts behind his eyes wrestled me for his soul.
     “My religion...”
     “Speaks of eternal life, doesn’t it?”
     He stared at me in that assessing way from our first encounter.
     “If you believe it, then you believe that God has the final word. And every religion, not just yours, preaches the importance of justice.” I rose. It was time for him to be alone. “Let God do His job, Louis. Yours is hard enough.”
     I let myself out.

     [From Chosen One]

     As matters stand in this year of Our Lord 2019, machines have no emotions and no innate preferences. They operate according to the rules embedded in their construction and (in computerized cases) their programming. They certainly don’t feel sympathy, compassion, anger, or “closure.”

     In our justice system, we appear to prefer humans, together with their human emotions and preferences, to be the operators and ultimate deciders. However, experiments have suggested that specific changes to trial procedures would reduce or eliminate the emotional and preferential factors from jury trials, resulting in more accurate verdicts. Those changes, according to one viewpoint, would bring the jury trial closer to the (admittedly only asymptotically approachable) ideal of perfection. Yet the justice system resists them.

     It resists them for several reasons, but above all because no two persons under the veil of time can agree, absolutely and without qualification, on what constitutes “perfect justice” even in a single, completely specified case. We want human emotion in play, because it holds out the possibility of mercy – or vengeance – that supersedes the objective requirements of the law. Indeed, the possibility is integral to our individual, partly conscious and partly not, conception of “justice.”

     Here’s another take on “justice,” from a science fiction writer of some modest altitude:

     “I assure you that the essence of the robot mind lies in a completely literal interpretation of the universe. It recognizes no spirit in the First Law, only the letter. The simple models you have on Earth may have their First Law so overlaid with additional safeguards that, to be sure, they may well be incapable of threatening a human. An advanced model such as R. Daneel is another matter. If I gather the situation correctly, Daneel’s threat was necessary to prevent a riot. It was intended then to prevent harm to human beings. He was obeying the First Law, not defying it.”
     Baley squirmed inwardly, but maintained a tight external calm. It would go hard, but he would match this Spacer at his own game.
     He said, “You may counter each point separately, but they add up just the same. Last evening in our discussion of the so-called murder, this alleged robot claimed that he had been converted into a detective by the installation of a new drive into his positronic circuits. A drive, if you please, for justice.”
     “I’ll vouch for that,” said Fastolfe. “It was done to him three days ago under my own supervision.”
     “A drive for justice? Justice, Dr. Fastolfe, is an abstraction. Only a human being can use the term.”
     “If you define ‘justice’ in such a way that it is an abstraction, if you say that it is the rendering of each man his due, that it is adhering to the right, or anything of the sort, I grant you your argument, Mr. Baley. A human understanding of abstractions cannot be built into a positronic brain in the present state of our knowledge.”
     “You admit that, then— as an expert in robotics?”
     “Certainly. The question is, what did R. Daneel mean by using the term ‘justice’?”
     “From the context of our conversation, he meant what you and I and any human being would mean, but what no robot could mean.”
     “Why don’t you ask him, Mr. Baley, to define the term?”
     Baley felt a certain loss of confidence. He turned to R. Daneel. “Well?”
     “Yes, Elijah?”
     “What is your definition of justice?”
     “Justice, Elijah, is that which exists when all the laws are enforced.”
     Fastolfe nodded. “A good definition, Mr. Baley, for a robot. The desire to see all laws enforced has been built into R. Daneel, now. Justice is a very concrete term to him since it is based on law enforcement, which is in turn based upon the existence of specific and definite laws. There is nothing abstract about it. A human being can recognize the fact that, on the basis of an abstract moral code, some laws may be bad ones and their enforcement unjust. What do you say, R. Daneel?”
     “An unjust law,” said R. Daneel evenly, “is a contradiction in terms.”
     “To a robot it is, Mr. Baley. So you see, you mustn’t confuse your justice and R. Daneel’s.”

     [Isaac Asimov. The Caves of Steel]

     (Yes, my memory really is that good.)

     And so we have the seeming contradiction between a human desire for “perfect justice” and a resolute human avoidance of getting any closer to the least, if it would require us to “take some of the human element out of the game.” It’s not irrational but supra-rational. It allows that “justice” in R. Daneel Olivaw’s sense is not always what we seek, whether for ourselves as individuals or for our society.

     Just something to think about over your Cheerios®.


Paul Bonneau said...

Justice certainly has some connection to law, even if we cannot specify what that connection is. What I don't understand is reverence for the law - given an understanding of how it comes about:

This little piece has ruminations on justice in a backwater of the British Raj:

Ragin' Dave said...

There's the Letter of the Law, and the Spirit of the Law. It's what allowed me, as an MP, to tell a speeder to just slow down, and not issue a ticket.

Most Americans are law abiding citizens, at least the ones I deal with on a daily basis. I could use the Spirit of the Law to remind them of the Letter of the Law, and do it in such a fashion that I didn't have to actually use the Letter of the Law in order to get folks to slow down.

Unfortunately, some people will only respond to the Letter of the Law.


I assume you are familiar with the "Devil Speech" scene in A Man For All Seasons. This applies.

The Left is willing to raze the entirety of the law to get at the Republican "Devil"... they're willing to set aside decorum and even civil peace because we've been branded - slowly-slowly - as evil.