The Significance of “Public” in the Public Justice System

The alternative to public justice is private justice. Historically, private justice has included interminable feuds. A member of a family is killed or injured, the affected family retaliates by killing or injuring either the imagined assailant or a member of his family. This assailant’s family then retaliates, injuring or killing members of the first family ad infinitum. Some feuds have been known to last centuries.

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Another method involves vigilantism. An angry mob becomes judge, jury, and executioner. There is no trial or careful determination of guilt and the remedies open to the mob of vigilantes are limited to the noose or possibly a severe beating if the victim gets lucky.  The vigilante mob is vulnerable to the speeches and sophisms of mellifluous scoundrels. There are no rules of evidence, so it is all too easy for someone’s enemies to conspire against him.  Mere unsubstantiated rumor and baseless assertion provides sufficient pretext to attack. If it concerns you that innocent people are sometimes falsely convicted in the public justice system, you should be more concerned about the consequences of mob rule.

Police departments have background checks to verify that candidates have no criminal history, are respected and trusted by their neighbors, and are generally of good character. No system is perfect. Some people of bad character get through, and some officers will be corrupted by the job, become cynical, and take the law into their own hands if supervision is lax. Police officers also receive training in how to defuse tense situations with verbal “judo,” how to use weapons, and how to arrest someone while recognizing civil rights. Members of vigilante mobs have no background checks and no training. Almost invariably as members of society, citizens will be better off with trained and carefully selected police officers than with self-appointed “equalizers” and vigilantes, who may be sadists, have no supervision, no departmental policies to follow, and no job-related penalties and sanctions. Vigilantes are anonymous, police officers are not and can be disciplined if they break laws or overextend their powers.

The alternative to public law enforcement is private protection in the form of bodyguards, private guards of property, and gun ownership. Private protection is expensive and is thus reserved for the rich. Police protect the most vulnerable members of society the most because they cannot hire their own protection, and they live in the most crime-wracked neighborhoods, though it is an unhappy fact of life that rich well-connected people can at times intimidate the police and avoid arrest with plausible threats to sue or otherwise make trouble. If a police officer arrests the mayor’s son, he better be sure of his grounds for arrest.

Public justice depersonalizes arrest, prosecution, and determination of guilt. If a judge, for instance, knows the defendant, is related to the defendant, or has any other such connection, he is supposed to recuse himself from the case. By removing personal bias and conflicts from the justice system as much as possible, public justice means that feuds do not begin. By following due process and rules of evidence it lessens the chance of feelings taking over and the mob simply seeking retribution and increases the likelihood of rightful conviction. This does not mean that feelings never intervene but that everything has been done to minimize mob rule and personal antagonisms. When the police come to arrest you, the jailer locks you up, and the judge or jury determines guilt it is as close as we can come to it being “nothing personal.” Objectivity is never perfect, but it is better than the victim’s best buddies turning up on your doorstep ready to string you up, when no determination of your guilt has even been found. With public justice and officers of the law it makes no particular even emotional sense to take revenge on the arresting officers or the judge. Nonetheless, threats are sometimes made in order to intimidate any judge or prosecutor. When Rudolph Giuliani was a prosecutor, a mob boss he was prosecuting threatened to have him killed. On the TV show about fictional UK cops, Scott and Bailey, one of the detectives was threatened by someone with ties to the criminal underworld. Her response? “My gang is bigger than his gang.” It was a joke, but that is an element of public justice. Not only is singling out any one member of the public justice system as being to blame for your prosecution or conviction somewhat nonsensical, since getting rid of one prosecutor or judge will simply mean another taking his place, and neither of them are taking revenge on you, but in taking on the public justice system the defendant is up against the entire state.

One of the biggest drawbacks of private justice is that there is no practical end to the cycle of revenge. Your family’s “honor” must be defended and slights avenged. Each attempt to punish malfeasance just counts as a new wrong to be rectified. The only way to end the cycle in that case is for the mob that encompasses both sides to choose a single scapegoat victim to blame for everything and then to murder him. However, there is nothing just about such a solution, and everyone would have something to fear, since it could be anyone of us.

9 thoughts on “The Significance of “Public” in the Public Justice System

    • Thanks, Tom. I wrote this for my criminal justice students many months ago, and decided that maybe other people might be interested, and also, it seems timely in a time of trail by media and politicians.

      • Here in Scotland, “trial by media” was given a salutary check in 2018, when the Daily Record was fined £60,000 for contempt by the High Court of Justiciary for publishing two stories, one detailing an arrested man’s criminal past and another illustrated with a photograph of a suspect as well as material which could feature in his trial.

        The first story contained phrases as such as ‘gang boss’, ‘cocaine kingpin’ and ‘cocaine baron’, and suggested that he had been ‘involved in a violent turf war with rival gangsters.’

        The photographs and captions in the second story were sensational in nature, showing the accused being pinned down to the ground and in handcuffs, one bearing the caption ‘GOT HIM.” It also quoted a Facebook posting said to have been made by the mother of one of the children, saying: “This absolute beastie scum tried to get my daughter and her friend to go into the woods with him in broad daylight” said Lady Dorrian, the Lord Justice-Clerk adding: “This is a phrase suggestive of offending of a sexual or indecent nature.”

        The Lord Justice-Clerk, sitting with Lord Menzies and Lord Turnbull warned that similar offences could well attract a custodial sentence for the authors, editors and publishers

  1. I recently read an argument that the politicization of the American justice system began with the O. J. Simpson trial. This was, of course, preceded and caused by complaints about “white man’s justice,” but the Simpson trial does seem to have marked a sea change in public perception of the American justice system. It is alarming how trust in public institutions is now sharply divided along political lines. A very large number of Americans now presume there is radical corruption in the universities, the media, the legislatures, the churches, the police, and the courts. I am by no means immune to this radical cynicism and do not think it is nothing but mass hysteria. But it is still very alarming since a society without legitimacy must either disintegrate or become authoritarian.

    You may have read me saying that I have a son who is majoring in criminal justice with an eye to eventual work in law enforcement. I think he will persist in this, but know he is right now wrestling with second thoughts. He does not want to spend his life protecting people who score social points by looking down their noses and calling him a goon.

    As you so rightly observe, the decay of public institution hurts the ordinary people who rely on those institutions. The upper classes don’t care if the police are defunded for the same reasons they don’t care if the public parks, public libraries, public schools and public toilets are defunded. They don’t use these things.

    I also recently read a rumination on the enlightenment legal doctrine that it is better that that ten guilty men escape justice than one innocent man be wrongly condemned. The thought of being unjustly hanged is horrifying, of course, but I can’t help but to think that this doctrine looks better the farther one is from those ten free and guilty men. In my study of southern vigilantes, I’ve come to see that they were in most cases trying to reduce their chances of being robbed, raped or murdered. “Rough justice” meant justice for the probable future victims of men who were probably guilty but looked set to “beat the rap.”

  2. René Girard says, the justice system “serves to deflect the menace of vengeance. The system does not suppress vengeance; rather, it effectively limits it to a single act of reprisal, enacted by a sovereign authority.. [a decision] invariably presented as the final word on vengeance.”

    The justice system is not superior to vengeance, but rather, applies vengeance in the light of a new, delicate balance of expectations: that no crime go unpunished (the archaic or pagan expectation), and that no man be presumed to be the criminal (the Biblical expectation), no matter how widespread the presumption. However, as David Hume recognized, the circumstances of justice are not natural, and justice according to Hume should and will give way in times of “natural necessity”, which conforms somewhat to Girard’s idea of the sacrificial crisis, in which the primordial desire for a scapegoat lynching overwhelms all jurisprudence.

    The events of 2020 begin to look very much like a species of what Girard called the crisis of undifferentiation, and the justice system is not immune to buckling under such pressure, standing by as the accused are taken off by baying mobs. Further, we ought to remember Caïaphas, the High Priest and Judge, who understood the importance of giving the judicial imprimatur to the lynching in order that it be effective in saving his nation in crisis.

    I recently was invited by a group of Girardians to comment on an article titled, “On the occasion of Derek Chauvin’s conviction, let us remember Tony Tympa”, referring to the white man killed by police in a similar though culpably worse manner than George Floyd, who received no media attention, nor justice for his death. The point I was being invited to consider was that the revealed scapegoating instinct and the root of evil, hitherto only understood as victimizing racial minorities, women and alphabet people, was no less applicable to the forgotten victims of state violence based on class, which the undue focus on race etc had obscured. Sure, there are myriad classes of poorly-off people we should recognize as warranting of our pity. What occurred to not a single so-called Girardian soul however was that, in matters of justice rather than compassion, on the occasion of Derek Chauvin’s conviction, we ought to remember George Pell.

    • Thanks for commenting, Leigh. Yes, political influence on verdicts is anathema. Interesting comparison with George Pell.

      I briefly belonged to a supposed Girard FB page. Nobody there understood Girard. One young woman claimed that Jesus would have been pro-scapegoating rich people. I couldn’t dissuade her that under no circumstances would Girard accuse Jesus of being pro-scapegoating. That would have defeated the purpose of his own crucifixion – to reveal the scapegoat mechanism for the first time in history. I quit the group shortly thereafter.

      • Haha Richard I believe then that we probably belonged to the same unfortunate group.

        Recently there I was accused of being an antisemite because, being of Jewish origin and education, I deigned to propose a new reading of the Book of Esther and the coming Purim festival using Girard’s own tools of demythification, which is impossible without the Cross, to expose the polarisations of archaic, genocidal violence exacted by Mordechai and “his followers” (the Jews of Persia), which we Jewish readers are largely blind to, even though it is right there in the text. The self-styled Girardians (what was that Madison quote, “Had every Athenian been a Socrates; every Athenian assembly would still have been a mob.”) there un-self-consciously piled on to the obtuse accusation of antisemitism (“so what you’re saying is…”), with more and more virulent calumnies, seeking to have me – the Jew amongst gentiles! – banned from the group, for my supposed Jew-hatred. Oh, the irony.

        I found it more drôle to remain in the group, precisely because I’m like kryptonite to them, a role I relish, and was spared the full auto da-fé probably due to a well landed counterpunch, having publicly highlighted the antichristian position of my accuser. In condemning my (but not strangely Girard’s) supposedly despicable “supercessionism”, my accuser made the absurd, meretricious claim, which no honest reader of Girard could arrive at, that Judaism and Christianity are equally explicit and comprehensive in the revelation of the scapegoat mechanism. This claim of course obliterates any significance at all to Christianity, and supposes that Girard, who converted to Catholicism, could just as well have chosen to convert to Judaism in order to make his grand discovery, but that would comically just make Girard another false messiah. It’s a tired folly, the war of violence against truth and logic, but one has to train one’s martial forces against idolaters if one is to destroy idols, and the sacred cow of cultural relativism and the attendant Jew-coddling has done its dash and had its day.

        The riddle that Girard appears to have solved, is precisely why nobody – especially our self-appointed “intellectuals” and “moral vanguards” – wants to understand him, as it completely destitutes them, with the rest of us, of the righteousness of our polemical indignation, yet also makes it possible, instead, to mock the indignant as a “Karen”, if not a hypocrite… or indeed as clumsy, sophistical lynchers. Nietzsche remarked that intellectuals are only in the business of writing hagiography in order to disguise their own mauvaise foi & resentment, and what Girard called méconnaissance at the origin of all human culture, Nietzsche, in one of his many aperçus of genius, named forgetting, an active rather than passive principle *and virtue*. Nietzsche observed that “there is a degree of insomnia, of rumination, of historical sense which injures every living thing and finally destroys it, be it a man, a people or a culture.” Knowing when and what to forget is a virtue worthy of a good pagan: “All acting requires forgetting, as not only light but also darkness is required for life by all organisms.” These “scholars” prefer to exploit Girard (and the Law, and Jesus) rather than hear him in full, because their attitude is literally and diametrically opposed to the unbearable truth, alethea, the unforgetting, of our dark, injurious origins and radically fallen nature.

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