"Criminal" justice systems

In the last weeks Karen and I have been watching on and off the Star Trek series Deep Space Nine, which admittedly looks a bit crude compared to the high-definition remastered version of The Next Generation, but has very interesting plots anyway. Yesterday we watched an episode where Miles O'Brien, a human and one of the main characters in the series, is detained and accused of terrorism by an alien race living under a military autocracy not unlike the Soviet Union of the 50s, where the needs of the society had precedence over the needs of the individuals.

In this strange society, the justice system is not aimed at determining the culpability of the detainee, because that is always the case. Instead, the goal is to present the evidence gathered by the very efficient police forces and give the accused an opportunity to admit their fault and take the sentence (always death) with a dignity and a respect for the well-being of the society that would at least save the good name of the family. Arguably, the citizens of this empire, who have been raised in the culture, will consider better for the society at large to accept a sentence (even if it is unjust) than to contest it and risk cracking the foundation of the society. The drama arises from the fact that the indicted is a human, who has been raised in a different tradition where the guilt has to be proven and a verdict of innocence is not only possible but also common. Is this system unjust? Can we consider it a "criminal" justice system? It depends.

Photo: John O'Neil

There are two aspects to the justice of legal systems that I would like to address: the first one is that all legal systems are conventional, "made up". Legal codes do not grow on trees so that one could say "this is a natural legal code" as opposed to others that could be considered "artificial". The design and the operation of the legal system is an integral part of the social contract, as it is in charge of its upholding and supervision. In the early tribal societies, the justice system was probably very basic, relying either on the judgment of the chieftain or an assembly of seniors, but it was a justice system anyway: violations of the social norm were punish according to custom and one can argue that the design of such system is part of the memetic code that could help societies survive or make them die, particularly in evolutionary competition with neighboring cultures: it the control is too lose, the society loses its identity and dissolves; if it is too tight, life in the society becomes too hard and members start to die or desert to other societies. The corollary is that no legal system is better or worse, more or less just than any other, because each one has been developed and curated in the spirit of its own society and is, as such, a valid way of solving the problem of social control (otherwise the society would have died out). 

The second aspect is that legal systems should only be applicable in full to members of its own culture. It cannot be expected that a visitor knows all the cultural nuances of the society they are visiting, so a society has to choose between closing up for visitors (thereby ensuring that all the passersby know the law) or allow for some leniency for those foreigners who unknowingly break the rules. Of course, there must be a minimum set of social conventions to be observed by anyone and indeed it is the job of local authorities to inform visitors of the local uses that are most important to uphold (think of the "No shoes, no shirt, no service" signs in many seaside venues). This is where the Star Trek episode showed the conflict, because the human was obviously not educated in the alien traditions and was therefore utterly disoriented by the whole detention and judgement process.

One interesting ethical question that can be asked today is what to do with the societies-inside-societies, especially when their legal traditions clash: the Roma people (commonly known as gypsies or travelers), with their traditional nomadic lifestyles, are a constant source of irritation in many countries in Europe. They are supposed to follow the secular law, but then they need to set up camp somewhere, and this occasionally breaks the zoning laws.Crossing borders (particularly before the European Union) was supposed to require passports, but many of them did not have a nationality. Their sense of honor can also lead sometimes to deadly disputes that would be considered murder in most western countries, but is perfectly legal in their tradition.

Of course, the Roma are not the only case. Jews all over the world are another minority that is traditionally subject to a code of law (the Halakha) different than the surrounding society, so orthodox followers often enter in conflict with the secular law. And there are many other examples. At any rate, there is no easy solution to this problem, because having two different justice systems might seem unjust and suppressing the cultural tradition of the minority is equally brutal.

I leave you with a hint at Shirley Jackson's 1948 short story "The Lottery", which depicts a seemingly barbaric custom in the midst of an otherwise idyllic society.Is it brutal from our western point of view? No doubt about it. Is it unjust? By no means. The village has been performing it since time immemorial and has therefore become part of the social contract. Would it be possible to remove this practice from the society without fracturing it beyond repair? Probably, but it is the kind of change that is best effected by convincing the participants, allowing them to change their social contract, not by prohibition, that would lead to crippled institutions. Please keep that in mind next time you judge a foreign custom. Have a nice evening