Our topic today leads straight into three questions.
- What is justice?
- Is justice what one person feels is just? Will vigilantism or other selfish action do?
- How do you get to a fair result?
Heinlein answered these questions, and his proposed answers vary, are sometimes mutually incompatible, and are often wildly at odds with our own answers. [That alone needn't make him a libertarian, or a law-and-order conservative, or a liberal, or an objectivist, or a progressive, or a regressive, or a gun nut, or an advocate for harsher or more lenient treatment. All of which are beyond the scope of Heinlein Fridays anyway, as I have defined the project. Nevermind what his leanings were, let's talk about the answers he proposed.]
What's Justice?
Heinlein has an easy, quotable answer. In "Revolt in 2100," mentioned
last time, there's a short story,
"Coventry" (review). Coventry is reserved for those who breach that society's basic Social Contract, the Covenant. It is scientific, Heinlein informs us. It
was the first scientific social document ever drawn up by man, and due credit must be given to its principal author, Dr. Micah Novak, the same Novak who served as staff psychologist in the revolution. The revolutionsts wished to establish maximum personal liberty. How could they accomplish that to a degree of high mathematical probability?
First, they junked the concept of "Justice". Examined semantically "justice" has no referent - there is no observable phenomenon in the space-time-matter continuum to which one can point, and say "This is justice". Science can deal only with that which can be observed and measured. Justice is not such a matter; therefore it can never have the same meaning to one as to another; any "noises" said about it will only add to confusion.
But damage, physical or economic, can be pointed to and measured. Citizens were forbidden by the Covenant to damage another. Any act not leading to damage, physical or economic, to come particular person, they declared to be lawful.
So that's that, then.
My favorite line is the one following immediately after that quote: "Since they had abandoned the concept of 'justice', there could be no rational standards of punishment." Wow. Cesare Beccaria (
Wikipedia entry) would be impressed - although I don't think Heinlein actually confronted Beccaria's
theory of punishment, despite assuming its disproof. Well, it's science fiction, why not assume things.
So what's left? Do we fall back upon
law & economics - or more accurately, purely economic remedies only, for purely economic harms - a proposition which troubles nearly every law student, who immediately realizes that dignitary harms, unmeasurable harms, and difficult-to-quantify harms, none of which have that so-easy price tag Heinlein describes, are perhaps the major vexing issue facing legal damages calculations. How valid can a system be, the student often wonders, if it can allocate damages for fifty crates of spoiled melons, but not if it can't deal with a lost limb, or a lost life - particularly a lost husband, son, wife or daughter, or parent.... [note: this isn't necessarily the real problem with the vulgar form of Law & Economics, which understands that non-economic things have value, but which all too often makes foolish or counterfactual assumptions about markets or about the rationality of actors.]
Was this Heinlein's one and only statement? Is the best we can do really just measure harms? Well, the 2100 proposal wasn't his one and only shot at the topic. It was a suggestion.
When I googled heinlein justice, the most common result was Job: A Comedy of Justice, which I noted briefly in
HF: Courts. Was that title all he had to say? Is life but a joke, with unfairness abounding?
What can one person do, acting selfishly?
- There is no justice but what we make for ourselves.
- Do unto the other fellow what he would do unto you, but do it quicker.
- Society's rules apply only until self-interest collides with them.
The above statements are not necessarily Heinlein's philosophy. Rather, they are statements of vigilantism, self-interest, and lawlessness.
Professor de la Paz, in The Moon Is a Harsh Mistress (see more on tMiaHM, below) is a rational anarchist, he says (Tor 1996, pp.83-85), and would agree with the third point, above - but for him, not for thee and me. He's remarkably civil and friendly for an anarchist.
Lazarus Long, the protagonist of
Methuselah's Children and Time Enough for Love (see more on TEFL, below), is a survivor. He would most certainly buy into statement two, above.
Manuel Garcia O'Kelly Davis, the narrator of Moon, might well agree with number one - but not necessarily as a vigilante, so I'll discuss him later.
Is all this the best we can do?
Defending the Self: Time Enough for Love
Lazarus is the ultimate survivor. He walks right through social conventions, and indeed on out of society, when he chooses. If there's no door, he'll escape and make a run for it. Heinlein doesn't celebrate his lack of morality, exactly, but he does perhaps redefine morality and right action. There's certainly a lot of discussion of what kind of behavior leads to survival, and what doesn't.
Lazarus is most bluntly confronted with survival in
TEFL, when he must, once again (For the hundredth, or even thousandth time? Not if we take the narrative of the Oldest Man, set far in the future, at face value) act quickly and violently to save his own life.
Lazarus and Dora are confronted, at their homestead far from civilization, by a family of lawless, violent thugs, the Montgomery clan. Heinlein writes the scene with dispassion and quick skill. Who does what when, in the action-packed denouement, is depicted much more neatly than through millimeter-by-millimeter adventure-style narration ("Diving under the bolt, he cursed and threw himself to one side, blasting away with his..." - that's not Heinlein's style). That glamorizes action. Instead, the violence is sudden, swift, shocking, and not very gory at all; Heinlein notes wounds, he does not linger over them.
The erstwhile aggressor, who suffers various indignities, including losing the fun of raping Lazarus' wife and killing them both, concurrent with having his suddenly-revealed weapon shot from his hand, and finally finished off without a trial, seems upset at this failure of due process. "You bastards! Never gave us a chance." Lazarus replies "Gave you lots of chance. You wouldn't take it." (Tor pp.323).
Should Montgomery have a trial? What for? He's like a Moussaoui, only he actually had his hands on a weapon. He's like Saddam, only there's no question he was an immediate threat. He's like some burglar (although he was invited in, because his group outnumbered and outgunned Lazarus), he's the guest who suddenly turns bully and threatens harm to the occupants. Do such deserve more than being shot down? Heinlein affords no respect to any alternative answer. But then, there *is* a right to use lethal force to oppose the same in defense of oneself and one's family, particularly in your own house, recognized everywhere.
But although it's an appealing, highly satisfying approach, it doesn't apply to all lawbreakers in all scenarios. Let's move away from self-defense, and look at vigilante activity in another context.
Going Judge: the Moon is a Harsh Mistress
Manny's not a very violent guy. He acts quickly in self-defense and to protect others shortly after the opening pages of
Moon, but for much of the book he is presented as avoiding formality and strife, preferring his work, his select group of friends, and his family. He's the opposite of a politician, neither diplomatic nor particularly subtle.
In
the Moon is a Harsh Mistress (my favorite book by R.A.H., by the way), things work differently than they do around here. At pp.157-166, Heinlein throws in a scene perhaps more shocking than all the talk and depiction of revolutionary activity that has gone before. He has a scene of law and order, in the Moon. (Sorry, not "on" the Moon; they've burrowed inside, built warrens. It's "in" the Moon.)
Manny stops by to see a Judge, his friend Brody, and finds him not in. He does, however, bump into a gang of youths, doing the simultaneously noble and adult thing of preparing to kill a tourist.
The tourist, a gentle Earther named Stu, has insulted a lady. The sociological explanations I'll let pass by, except to note that in previous Earth cultures, extreme scarcity of women has in my limited recollection led to possessiveness by men and then to commodification of women, who are not particularly freer because they are more coveted. In Heinlein's frontier/prison world, the scarcity of women combined with group sentiment has led to empowerment of women - "she chooses."
The youths, "good boys" in Manny's estimation, are about to impose a summary sentence on Stu: They are about to stuff him out an airlock. They are nervous, perhaps never having caused a death before, but know that this is how things are done. Stu is befuddled, unable to comprehend his danger. The boys have come to find a judge, to make it proper and legal.
Manny decides to "go judge," because it "troubled me to hear young people talk about eliminating a tourist." (So much for touristicide as a public service.)
Manny gets consent of all the affected parties - defendant included - and gets unanimous buy-in. He charges for his service - as high as the market will bear. Manny notes "I'm informal sort of judge" [sic; Manny habitually omits unnecessary articles] and sits behind Judge Brody's desk, putting on his plug hat. Then he holds court: "Court's in session," I said. "Let's have names and tell me beef."
Why does Manny do this? Because it's necessary to the plot? Sure. But what is his motivation in the scene?
Manuel has a sense of mercy.
Where Lazarus offers Montgomery no quarter, above, when the man drew on him in his own house, Manuel faces no such danger. Stu is not a threat, except to public order, and that only because he is a "new choom," unaware of the social rules he violated.
Manuel teaches the boys that they did the right thing by coming to a judge, charges them for it so they value it, tries to impart to them a lesson in wisdom and mercy, and sends them on their way. Stu he does not in fact sentence to death, only fines - heavily - to help teach him a lesson. This leads on to a discussion of
TANSTAAFL, and on to a friendship.
So Manny's role, acting as a single individual to raise the local level of justice (tempered with mercy), is not that of the vigilante self-defender. He's a vigilante judge, who like a
mediator depends on the consent of the parties for his jurisdiction, and then who like an arbitrator or judge issues rulings and fines.
Balancing wrongs: The Number of the Beast
(Thanks to
Tenser, Said the Tensor for the suggestion).
The Number of the Beast is a much-reviled but highly worthwhile book: see, e.g.,
yet another highly critical review from 1981. My own personal
favorite critical essay on the book, by David Potter, is posted at Heinlein Society. Potter posits that it's not a disaster at all but rather a giant practical joke and a how-to manual. As Heinlein explicitly explains, people (particularly critics) who fail to get the joke will wander around in a maze of their own devising and starve to death. In contrast, those who can read the words and understand them will immediately solve the puzzle. I admit I was puzzled by the book at first, but I never hated it - it's such an interesting story, with tons of wish-fulfillment and amazing forays into beloved works of fiction, for all that the plot is subordinated to the point, and that it's a talky book, rife with not only lots of sex, but lots of incestuous and otherwise shocking sex. Maybe it's less of a mystery why I enjoyed it.
In NotB, Heinlein depicts a society with radically different standards of justice and mercy.
In a brief, but brutally effective portion, Heinlein depicts a society in which they "Hanged All the Lawyers" - in 1965. (Fawcett 1980, pp.378-379.) There is no category of lawyers in the phone book - or presumably legal services, either. A note: Hang All the Lawyers may not have the meaning you think it means. See this (unfortunately all-caps)
1988 speech by Robert Peterson. I've placed the relevant excerpt here, swapped into lowercase.
It was during a recital of this shopping list that a member of the crowd, dick the butcher, shouted enthusiastically, "the first thing we do, let's kill all the lawyers."
Well, there it is. The phrase so frequently used to damn the legal profession, shouted by a butcher in response to an ex-convict and confidence man, who was sent to london to foment anarchy, burn the city, and loot the commonwealth.
Was shakespeare endorsing his character's sentiment? Hardly. First--shakespeare enjoyed a good relationship with lawyers. His troupe, the lord chamberlain's players, often performed in the inns of court, to which all barristers must belong--roughly the equivalent to performing at the state bar headquarters. In fact, the first known performance of the comedy of errors was at gray's inn, one of the inns of court, during the christmas revels on december 28, 1594. Gray's inn celebrated the 400th anniversary of its opening there with a performance at gray's inn on december 28, 1994. Loves labours lost was also performed at gray's inn the same year, and twelfth night, one of his most popular comedies, played middle temple in february, 1602. He clearly was not at odds with the legal profession.
Second, one of shakespeare's first patrons, henry wriothesley, earl of southampton, was himself a member of gray's inn. To this day, the earl's portrate hangs behind the bencer's table in the gray's inn hall. Wriothesley, a remarkably beautiful man, is also the most likely addressee of one of shakespeare's most romantic lines: "shall i compare thee to a summer's day." sonnet 18, ln.1. Shakespeare also dedicated both venus and adonis and the rape of lucrece to the earl.
Third, he drew his characters for the attack on london not from the wars of the roses, but from the peasants revolt of 1381, in the time of richard ii, another weak king. Some 10,000 or so englishmen swarmed into london (then a city of about 40,000)--burned, looted, and demanded the overthrow of the government. Whatever karl marx or pol pot may make of this event centuries later, it was not considered a happy moment in history by either shakespeare or the london patrons who supported his theater. They considered it a close call with anarchy, death, and the demise of civilization as they knew it.
Here is a quote from a contemporary chronicle, written in 1381 by jean froissart. He is quoting john ball, who became jack cade in shakespeare's play. "Good people", he would say, "nothing can go well in england, nor ever will do, until all goods are held in common, until there is neither villein nor nobleman, until we are all one."
Sound familiar? It is jack cade's script written 200 years before shakespeare repenned the lines.
If there is any doubt about shakespeare's sentiments, shakespeare has jack cade show us what his world would be like without lawyers.
Immediately after dick the butcher mouths his famous line, a clerk enters. Someone accuses the clerk of being able to write and read. Jack cade orders, "hang him with his pen and inkhorn about his neck."
Yes, second thing let's do, let's kill anyone who can write or read.
Jack cade then decrees that henceforward "it shall be treason for any that call him [cade] other than lord." at this moment a soldier, who, of course, has not heard this new decree, rushes in with a message and shouts "jack cade, jack cade." jack cade has him summarily executed for violating the new decree. Fair enough--ignorance of the law is no excuse. We never learn what the message was.
In any case, someone seems to have taken Dick the Butcher literally.
Heinlein presents a hilarious (and presumably unworkably simple) alternative tax scheme, a head tax plus real estate taxes, both paid to the State. The twist is that all valuation is done by the owner - but that there's no right not to sell at the valued rate. Kelo v. New London? The narrator for that chapter even says so: "This strikes me as loaded with inequity. What if it's a family homestead with great sentimental value?" (P.378-79).
But the most dramatic legal difference is Balancing.
When the person who committed a crime is caught, they don't appear to have trials. They don't appear to do imprisonment. What they do is they Balance people (or situations).
What's just? For an arsonist who kills someone, to burn them to death. For a poisoner, to kill them with poison. Drunk drivers who recklessly harm others are harmed themselves, in an identical way.
This is a crude sort of justice, by our standards: a literal eye for an eye, although I am given to understand that the modern, progressive, merciful way of interpreting
those lines was that it was a big step up from retributive killings whenever honor was insulted ("The most you can get if you're embarassed but not harmed is less than death") - plus I'm familiar with the liberal or even pacifistic gloss, "An eye for an eye leaves everyone blind." This is more in line with Jesus's own teachings, I'm given to understand.
Does it work? Well, I sometimes enjoy vengeance fantasies. I imagined that Ken Lay, who perhaps without intent to harm others, but nevertheless proximately and directly caused vast, irreparable harm to thousands upon thousands of employees, would be Balanced. If someone lost his house, perhaps Lay should lose the benefit of the
Florida homestead rule. If someone became homeless, I dreamed, so should the Enron and Andersen criminals who caused it. (Note:
As I've argued before, I'm not sure Ken Lay committed any crimes besides financial ones involving loans and fraud; I'm not sure he knew of the extent or nature of the Enron fraud, or intended to harm anyone. But he was convicted, because he lost the battle for credibility.) If someone died of hypothermia because they couldn't afford to heat their home...? Murder charges? Too extreme? Maybe no proximate causation.
Here was my logic: An intentionally criminal act, taken with conscious disregard for the wellbeing of others, and with recklessness as to the possibility of destroying the firm, losing the 401K money invested for the benefit of blameless employees
in Enron stock... (There's a brilliant idea. I'll hedge against the company going out of business and firing me by having a pension and savings plan, which will be entirely invested in company stock... which will become worthless if the company goes out of business... sometimes the failure of Congress to require diversification makes me mad.)
So there's a certain rough justice suggested by Balancing. But would it work?
What if you don't know who did it? What if someone's wrongly identified? I'd rather have a lawyer for myself, if wrongly accused - or even if accurately accused. And so I'd rather have lawyers, to protect and vindicate the interests of defendants as well as victims and society.
As to the punishment itself, while I think it could conform to the Bible, and thus probably pass Scalia's muster if the 8th Amendment is interpreted in conformity therewith (not that I'm sure it would be; he sometimes goes for English or pre-Constitution American law rather than Straight Outta The Bible), I don't think it'd fly nowadays.
We expect that sometimes a killer need not be killed. Although apparently we do still
want to kill child-molesters (Kip notes the latest news;
his prior analysis). My own position on that one: there's a difference between a child-molester (criminal, sick, possibly hard to cure, often re-offends) and a child-rapist (an insect. Kill him kill him kill him). I know children are presumed to be unable to consent. I don't accept that there's no difference between someone who seduces a child (disgusting) and someone who violently attacks and rapes a child (far, far beyond the pale). Incapacitation may be good enough for the seducer; killing's almost too good for the vermin.
Balancing, I suspect, is not really for us. And I'm glad. In America, you jaywalk across the street.
In Soviety Russia,
street jaywalk across you! (okay, that doesn't work, exactly, but it would if I'd said "you catch cold," or "you watch television," - see generally
Yakov Smirnoff).
Upcoming Heinlein Fridays:
- I plan to write an entire post on Jerry Was a Man, at some point.
- I'm opening the floor to submissions. Leave a comment or e-mail me to get involved; you can suggest a book, ask a question, make me a challenge, or even volunteer to help out. I'll consider any original writing of yours on Heinlein related (even tangentially) to Law, if submitted by noon on Thursdays. But prior discussion could help refine topics, style, and make it easier on everyone.
- One of my intended future posts is a discussion of all the crimes Heinlein describes which would not be possible outside of science fiction
