Hillary cited all sorts of stats about incarceration rates in her speech yesterday. I could write paragraphs about her misuse of the statistics to make a point rather than build understanding. But at bottom of all the statistics she cited is one simple question, “In each instance that is a part of the stats was the defendant guilty?” If so then regardless of the statistics, the law was followed and presumably justice was done. To contend differently is to contend that somehow the law and justice parted company.
Justice is measured in the facts of each individual case. It is not measured in what people think happened and it is not measured in trends. Trends, impressions and perceptions are the stuff of politics, but they are not the stuff of justice. The last few days have seen a lot of talk of justice, most of it politics in disguise. Many have pointed out during these few days the lack of trust between a populace and the organs of justice in the government. There has been lots of discussion of “the roots” of that distrust. But I have not heard anyone say that at least some of those “roots” lie in our penchant for confusing law and justice.
Ultimately, of course, “the justice system” is political. It is designed to enforce and execute law, and the law is established by legislators and they are by definition political animals. Justice is often cited as a reason for some law, but it does not guarantee that the law is just. It is quite possible for the law and justice to part company. What do we do when that happens?
The more law there is, the less likely justice becomes. Because justice is a matter of the facts of each situation, judgement is required. For example, when statutory law mandates sentencing for a crime, the presiding judge cannot exercise his judgment as to whether a particular defendant would respond better to a carrot or a stick in terms of making that defendant a better citizen. This creates many instances of legal compliance without justice. It is simply impossible to write legislation that foresees every possible circumstances and then allows for all those individual situations.
But, to continue with the example, mandatory sentencing laws were originally passed because judges were not exercising good judgement – too much carrot and not enough stick was resulting in way too much crime. Thus, if as a country we are going to leave such things in judges hands, we need judges of outstanding education, character, and judgement. Thus keeping the law and justice in good company with each other requires that as a nation we create such extraordinary people. Yet that is proving harder every day.
I am sure we could all come up with a list of reasons why it is becoming harder and harder to produce such people – media, over politicization of everything, the education system, changing family structures, the sidelining of religion…. And yet this dilemma of law and justice not always aligning seems as old as mankind. Pointing to current circumstance for the reason seems somehow out of touch with the historical reality of it.
And here we find one of the reason America can be described as a “Christian” nation. The Bible, and the New Testament in particular, spend an inordinate amount of time trying to reconcile law and justice. The Pauline epistles in particular are steeped in the question, and even Jesus himself spoke of coming not to abolish law but to fulfill it. This fulfillment comes not in the form of writing a better law than ever before or building a better system of law enforcement, but in working to build individuals of character and justice. Law can only point out that we are failing at the high standards of character and justice; it takes something much deeper than the law to get us to passing grades.
This is what people mean when they talk about our nation not being able to survive if remove religion completely from the public square. For our nation to be just religion must be present. Government is about law, religion is that deeper thing that gets us to passing grades. If these things do not work in concert then the law and justice must certainly part, and as the last few days have demonstrated, we really cannot survive such a parting.