The language we use about ‘crime and punishment’ – both ordinary and technical, or professional, language – may appear straightforward, accessible to basic common sense. Everyone knows what is meant by ‘victim’, ‘offender’, ‘punishment’, and so on – don’t we?
Perhaps not.
Recently, I heard from an eminent barrister and judge, author of a highly acclaimed insider account of our legal system, that the term ‘justice’ is itself a ‘slippery creature’, which derives meaning from whatever is considered ‘fair and reasonable’, not to mention practicable, in any given society, at any given time.* Far from appealing to an eternal standard, she argued, the idea is always somehow subject to the shifting sands of public opinion.
Thus, for example: whilst once justice meant ‘thou shalt not commit adultery’ as well as ‘thou shalt not kill’, in more recent times (in the West, at least) a distinction has been made between the latter as a matter of law and the former as a matter of (essentially private) moral behaviour.**
In this light, justice under the law is stripped of transcendental or ultimate value, and wrongdoers within our legal system are found not to have transgressed some objective standard but merely to have offended against the settled view of society at a specific point in time. This is a conception of justice as something like a collective preference.
The public elects representatives whose policy platforms reflect our preferences; politicians become policy-makers who set in law some of the parameters of justice; experts in sentencing extrapolate detailed guidelines and tools for making judgments; judges apply the rules, with only the minimum of discretion.
This account posits a causal chain linking public preferences, as determinative of justice, the laws made in our parliament, and the judgments handed down in our courts. It means, by extension, that we get the criminal justice system we ask for - and since the system appears not to be working (more and longer sentences failing to reduce recidivism, for instance) this should be making us feel distinctly uncomfortable.
Reform of the criminal justice system is a matter of vital importance.
It is an appalling irony that structures responsible for overseeing justice, themselves entail and perpetuate gross offences against fairness: trials long delayed, inflated and even indeterminate sentences, the separation of imprisoned parents from their children, underinvestment in education and rehabilitation programmes.
Analysis of such injustices, which seem to pervade the system, might conclude that they are the result of poor policy-making or inadequate provision of funds; certainly, when it comes to debates about public expenditure, politicians are rarely to be heard advancing the cause of prison officers, still less, prisoners.
On the basis of the preceding argument, however, the uncomfortable truth would appear to be that society at large, not only our policy-makers, bears some weight of responsibility for present failures.
In fact, our broken criminal justice system is a symptom of something deeper – and treating symptoms, whilst a bit of technocratic tinkering may bring temporary relief, will never address root causes.
Our broken criminal justice system is a symptom of our broken conception of justice.
Alienation from traditions and frameworks of thought, especially those appealing to metaphysical standards, has distorted the vital balance between objective value and subjective experience, allowing the latter to supplant the former as the determinative influence over everything, including public policy.
By contrast:
Justice, as a rejection of anything pernicious or destructive to the common good, exposes narratives of hate, which encourage the alienation of wrongdoers as another (inevitably, lesser) type of being.
Justice, imbued with a sacred commitment to the dignity of all, resists the temptation to vengeance and complacency concerning the other – in this case, the prisoner – whom we cannot see.
Justice, allied to love, tempers the subjective desire for retribution, reaches out to the other and seeks their good: for them, for those they have harmed, and for society.
True justice is strong. It does not tolerate wrongdoing, neither an offenders’ nor, importantly, our own. It is more than the expression of a collective preference, since it also holds society to account.
Notes
*This was Her Honour Wendy Joseph, KC, author of Unlawful Killings. Life, Love and Murder: Trials at the Old Bailey (New York: Doubleday, 2022). Joseph was a keynote speaker at this year’s Prisons Week Seminar at Durham Cathedral, held on 14 October 2023.
- I found Joseph's book utterly compelling: tremendously well-observed in its descriptions of courtroom proceedings, constructed for readers in all their detail with an engaging combination of empathy and wit. In recollections of homicide arising from gang violence, religious honour codes, mental ill-health and domestic abuse, Joseph shows how to be utterly commited to seeing that justice is done - the cause to which she has given her life - whilst also lamenting the failures which make such interventions necessary at all: 'the commission of any crime is a mark that somewhere, somehow, we have failed' (p. 279).
**See Joseph, Unlawful Killings, p. 276.