Legal exegesis, the law as amoral, and the justice institution as consequence distribution mechanism
Legal exegesis
[Public domain], via Wikimedia Commons
The question I am stuck on when trying to wrap my head around the legal profession is perhaps the critical question of which interpretation of "the law" is the correct interpretation at any specific point in time. Concepts such as "the spirit of the law" confuse me (and probably many others) as these seem particularly senseless and open to subjective interpretation. Can any of us truly know what the lawmakers were thinking when they wrote the laws? I don't claim to, but the concept of "spirit of the law" requires not just an ability to do mind reading but an ability to do it on people in the past.
The concept "letter of the law" is a lot more straight forward. If we are asked to follow the letter of the law then basically everyone is a criminal. This is why I interpret the justice system as a consequence distribution mechanism. This consequence distribution mechanism in my opinion does not necessarily produce justice and is amoral.
The law is amoral and the justice system as we know it is a method of consequence distribution
If I believe the law is amoral then it is not really my concern whether a law is ethical or unethical. The purpose of the law is to make us follow it. The role of the citizen is to follow the laws in an effective manner. Effective manner in this case would mean to know which laws are stupid to break (due to statistical probabilities) and which laws are the grey areas. This requires keeping watch on the law enforcement community, the law enforcement trends, the current moods, the current sentiment of the justice network (this justice network includes police, judges, informants, anyone with a professional or personal stake in or ties to that system).
To a certain degree everyone is involved with these systems on some level. You may not be the cop, or the informant, or the judge, but you may find yourself on the jury. You may not be the criminal, but you may be the tax payer funding the arrests. The ideal (in my opinion) is to avoid being in the position of the criminal, which for most people means following most laws most of the time. Why do I make the claim that the law is amoral?
If we look at history we can see many instances where systemic racism has corrupted entire institutions. The justice institution is not immune to this and in the opinion of many has been corrupted by institutional racism for years. An expression of this could be the Jim Crow laws, or the vagrancy laws. People who suffered through these injustices (posing as justice) can understand exactly why the law is amoral.
What if the law is not only amoral but the justice system is just a tool of consequence distributon? If we see the institution for what it is based on what it does (how it operates) then the main function of the justice system as we know it is not rehabilitation. The main function currently is consequence distribution. If a group of people with political influence decide there must be a law then they can criminalize another group of people indirectly. This has happened in the past with the vagrancy laws, it continued with the drug laws, and it is still happening today via various "tough on crime" laws. The outcome of these amoral laws isn't to make people better, or protect innocent people from dangerous people, but merely to punish people whom other people agree deserve to be punished.
Conclusion and initial thoughts
- Legal exegesis refers to the manner in which laws are interpreted. An average person cannot interpret the laws or even the constitution because this activity is reserved for constitutional scholars, legal scholars, the Supreme Court.
- The law is amoral. Laws are not in any way connected to right and wrong, or consequentialism, or morality. Laws are simply rules enforced by law enforcement agencies, intelligence agencies, etc. Rules exist to be followed whether you personally agree with the morality of them or not and if you do not think the rules are moral there is no known way to petition to stop the immoral laws from being enforced. In other words you either follow the rules or face the consequences with no legal means of expressing your conscience (unless you'd like to be a political prisoner).
- The justice institution exists as a consequence distribution mechanism. It is like a machine which successfully distributes desired consequences against undesired behaviors. The machine isn't anyone's friend and anyone can become a victim of it so the only thing most people who do not want to be given ugly consequences do is seek to avoid the sharp edge of the sword. The means of doing that vary from individual to individual based on circumstances of course.
What does this all mean? It means the choice is yours whether you want to take risks by breaking laws or follow the laws. The point of this post is to highlight the fact that there is a historically backed disconnect between morality and the law. The point of this post is also to highlight that the justice institution does not rehabilitate. Mass incarceration is an expression of exactly what is wrong with the justice institution. Mass incarceration is an unfortunate feature of an institution corrupted by racism (racist memes) and various forms of bias which still exist today. In fact evidence currently suggests that this institution is about to evolve into something even worse as AI is now capable of predicting criminality and IQ from faces.
Scary thought about AI predicting criminality. The justice system has major flaws.
This reminds me of Panopticon. In which not being able to see the guards but knowing they can see you causes the inmates to always act as if they are bring watched at all times. Even policing amongst themselves.
Don't you think you're under surveillance right now? You're online, you've got an ISP, you're involved with crypto, what do you think the probability of being under surveillance is for your demographic?
Oh I have no doubt about that :)
this is so great. you got the great point here.that's pretty cool to know.....
I guess you are little bit offended to law... but I can tell you that SOOOO harsh criminal and tax law is exception, deviation. I blame for the incarceration and criminal law, the fact that USA is still few decades back, too primitive and religious. It is still a judeo-christian nation. Obsessed with punishment. There are lotsa countries like EU, where the Law and regulations are up and running but people have their happy lives out of the menace of multi-decade jail times for few petty crimes, free of death sentence, enjoying residence only taxation ... and all the wealths of civilization without the illths of the medieval times , some of which still live in the Colonies.
Why would I be offended? The law exists. The law(s) present risks which are best managed by taking a compliance approach. Religion has nothing to do with the law(s) so I do not think we can blame Christianity just like I do not blame Islam for whatever laws exist in Muslim dominated countries. Human beings and human nature are the cause of bad laws and these amoral laws existed under atheist Stalin, under communist China, so what does religion have to do with it?
What leads you to believe that the EU is somehow more advanced than the USA or is somehow immune to bad laws? I'm not in a position to really compare because I'm not living in Europe right now but maybe some European citizens would like to join in on this debate.
Because you are afraid. And your fear is grounded. In your sadistic criminal and tax laws. Incl. the view that law is subject of exegesis as if it is some form of holy scriptures. You forget that you are the people, you are the law. Religion has much to do, because faith, belief is ignorance, it is evil. Bad, amoral laws? ... this sounds like faith derived statement. Communism is disinformation, lie, ideology, religion too. Very deadly. I told you about EU. Read my lips.: NO death sentence. NO harsh criminal laws. NO manic taxation. NO religion. ( many forget that 'religious freedom' used to mean 'freedom from religion' )...
You are "afraid" too because anyone who cares about consequences has to find some way to avoid the consequences they will not like. Only people who truly do not care about the consequences can do whatever they choose without any concern.
I wouldn't even classify it as fear. Concern for the legality and illegality of actions, priority for remaining in compliance, is rational. It doesn't have to come from fear but more do you want to pay the costs of ignorance of the law?
A company remains in compliance because it's simply bad for business to do anything else.
You see? You feel the law only as punishment. Law is first to prevent (the fear), to repair, and if irreparable ... to punish. I'm very curious to know your view on lawless societies.
No, I know justice is retributive. Retributive justice is about punishment. There is no effective rehabilitative aspect in justice as it is currently. Prison is not rehabilitative.
They don't exist or at least I've never seen one. Every society has it's laws. What lawless society can you refer to from history so I can know what you're talking about?
References
''A company remains in compliance because it's simply bad for business to do anything else.'' - is a drug cartel a company?
Define "drug cartel"? If it is a criminal organization, they have operating expenses and profits. All money making organizations do.
The cost of doing business, of staying in business, of maintaining good standing, includes inevitably compliance costs. I don't know anything about cartels because I'm not part of that.
I'm not the law. The law is what is written (or unwritten in the less strict sense). The people provide the sentiment which allows politicians to get elected. These politicians create the laws, but to say I'm the law as if my sentiment makes any difference toward what ultimately becomes law? Credulous way of thinking about it in my opinion. Most of the laws on the books aren't laws which I had any influence at all in writing. I doubt the people who wrote those laws considered what consequences the law might have on my life.
Amoral laws exist and it doesn't require any faith to make that statement. Just look at the consequences of the laws if you're a consequentialist. EU sentiment in my opinion should come from people currently living in the EU otherwise it's not data driven or even anecdotal.
If you thing you are voiceless speck. And dislike your country so much. You can always vote with your feet. :p
All countries have laws I disagree with because all countries have millions or billions of people (some of which I'll disagree with). So to simply choose another country with another set of laws you disagree with isn't going to produce a country which only has laws you agree with (this country doesn't exist).
Also who ever said I dislike any particular country? You can dislike a law, or several laws, or the entire justice system as it is set up, and still love your country. It's not necessary that you love how your government is set up for you to love the people or the ideals.
I would say it doesn't matter where we go there will always be bad laws. It's wiser in my opinion to simply learn to comply with laws you don't agree with and cannot change than to believe you can change every bad law, or protest every bad law, or hop from country to country running away from bad laws. Ultimately the cost of moving from country to country costs more than to comply with the bad laws.
Consider for example big social media company which seeks to operate in China? It complies with Chinese laws or else it faces consequences which have high costs for their shareholders (being banned from operating in China). So of course the most cost effective thing to do is to comply with the laws of China. It doesn't matter if the company (and shareholders) think these laws make no sense or are immoral as it's either comply with them or leave China (losing an entire market and damaging potential dividends for shareholders). That is the big picture way of looking at whether or not to operate in country A vs country B where you have to consider compliance costs but also opportunity costs.
References
Ok, so there is law. that's fine. and you find it all amoral. and just like some 'conservatrives' ... the next logical step is to protect people from the law by tyranny. well done.
Actually it is primarily progressives and libertarians who take the attitude that Justice reform is necessary. Which conservatives do you know pushing for Justice reform?
And it's not just my opinion that the law is amoral. It's fact. The law is not correlated with morality in practice historically unless you think Jim Crow was morally righteous, along with slavery, along with redlining, along with the war on drugs, prohibition, and various other laws.
The law is arbitrary. It does not care about our political attitudes. It exists for us to follow it and that is it. Compliance goes beyond political attitudes unless you mean to imply that only "conservatives" are law abiding which is not the point I think you are trying to make.
Accept reality for what it is. The law is what it is. It's an arbitrary amoral set of rules (sometimes based on social norms) which distribute consequences whether it be fines, prison, jail, execution, or community service. If you try to find morality in law then in my opinion you are living by the Just World fallacy.
References
We pay lawyers lots of money to protect us from the law and help us comply. I'm not sure what you mean by that phrase to be honest.
See this:
Thanks for sharing with us Legal exegesis, the law as amoral, and the justice institution as consequence distribution mechanism,,and also you are right that The law is amoral and the justice system as we know it is a method of consequence distribution
resteem done
Love your posts. They certainly make me think. Thanks for sharing my friend.
On the AI part, it looks like we are now entering the era where the movie [1]Minority Report. Nice thoughts!
[1] https://en.wikipedia.org/wiki/Minority_Report_(film)