HUMAN LAW IS A PREVALENT reality, as real as human life itself. Anywhere there is a relatively homogeneous community of men one will find some sort of authority and some sort of law that will govern their direction as a community. The law is roughly tied to justice, and justice, specifically a justice with the common good in view, is what justifies the law. Law also is recognized by an accompanying coercive power, especially a power that is intended to apply the law and its sanction against those who would usurp or disrupt justice through some sort of depredation, either external to the community or internal to the community.
It is simply a reality of the human condition--to the degree that it must be universally conceded--that justice must be secured by force, and it follows that law, the instrument of justice, must likewise ally itself with force. A law without sanction, without effective force or executory power, when faced with recalcitrants, with those who would disrupt the community and its common good, would be no law. A law without sanction among a world of those who respect only sanction is as good as no law at all. An inefficacious law is hardly better than no law at all.
Finnis believes that, for all the truth behind the fact that law and coercion are almost twins, there has been a tendency to oversimplify the relationship between law and coercion. The fault for that oversimplification of that relationship he places upon Aristotle and those who have accepted uncritically Aristotle's teaching on the relationship between law and its sanction, specifically on his perception that those who resist law are ipso facto the lawless ones. Might it be that there is principled resistance to law which Aristotle did not consider?
Vincent van Gogh's "Prisoner's Exercising (after Doré)
Aristotle taught that law enjoyed two modes of operation: a directive mode and a coercive mode. Aristotle postulated that the coercive mode was required as a result of the "recalcitrance of the selfish, the brutish many whose unprincipled egocentricity can be moderated only by a direct threat to their self-interest." NLNR, 262. But the recalcitrant is not necessarily ipso facto unreasonable. It might be that the law is unreasonable and so ought to be resisted, and, if so, Aristotle's assumption that the recalcitrant is by definition wicked is overly simplistic:
NLNR, 260.*
The law's coercive power goes beyond mere sanction or punishment. It allows for resistance, particular to external assaults (intruders), but also to internal assaults (terrorists). It allows for the arrest of those suspected of past offenses or even of those who may be suspected of planning future offenses. It allows for seizure of persons and of goods before adjudication of wrongs so as to prevent their escaping from the sanction of law. The law also provides for adjudicatory procedures and for the execution of judgments. But these sophisticated forms of enforcement in some way or other ultimately come down to the use of force or the threat of the use of force and may be said to be direct or indirect punishment. So it behooves us to study the most essential or fundamental kernel of legal sanction: punishment, specifically criminal punishment.
The fundamental reason justifying criminal punishment in Finnis's view is that "certain forms of conduct including certain omissions" will "occur less frequently than they otherwise would" if punishment is meted out to offenders. NLNR, 261. The entire aim of the criminal legal system is to delineate a sort of regime which defines the boundaries of that sort of activity which is consonant with the common good (which includes acceptable forms of individual autonomy) and that sort of activity which is considered to be "selfish[ly] indifferen[t] or individualistic demands for licence" and which is considered appropriating or infringing of others' proper and legitimate autonomy. NLNR, 261.
There are, however, generally considered to be limits place on that regime, limits that are generally divided into substantive due process and procedural due process. These limit "very substantially . . . the pursuit of the goal of eliminating or diminishing the undesired forms of conduct." NLNR, 261.
Why, one the one hand, do we establish a regime that has the goal of eliminating or diminishing undesired forms of conduct and yet construct a competing regime, so to speak, or at least adjunct to the regime, which works at cross-purposes to that principle regime by attenuating, mitigating, or preventing its enforcement? Why not simply allow for the regime to be pursued sort of like a gardener would want to remove the weeds from his garden. What sort of gardener imposes limits on himself in getting rid of weeds?
The answer for Finnis lies in the distinction between humans and weeds, locusts, or sparrows:
NLNR, 262. The need for this "drama" is felt by those who would otherwise resist the "stipulated common way," as well as those who would otherwise abide by it. To assault those who depart from the "stipulated common way" unfairly--through unfair processes--would detract from this "dramatic" role of the law. It would change the affair from being one of punishment to being one of social hygiene or social cleansing. The latter is simply seen as an abusive, inhuman state of affairs by the common assessment of men. The sanction, and the process of meting out sanction, must be tied to justice. Or else the regime will have the opposite effect upon the law-abiding.
Punishment, then, has this sort of equalization role. It seeks "to restore the distributively just balance of advantages between the criminal and the law-abiding." It serves to right the wrong, to balance the ship of state after the criminal has wrongfully caused it to tip in his favor. This balance is obtained by depriving the criminal of his benefits, and, if that cannot be done (or in addition to that being done) to "rectif[y] the disturbed pattern of distribution . . . by depriving the convicted criminal of his freedom of choice, proportionately to the degree to which he had exercised his freedom, his personality in the unlawful act." NLNR, 263. An "eye" so to speak, for an "eye." If the criminal law could supersede time, it could undo the act. As it is, the criminal law cannot, and so the punishment must be "diachronic," which, of course, means substitutionary. NLNR, 263. The substitution may be by fine, by deprivation of freedom, by removal of civil liberties, by actual imprisonment, or by any combination of those. In the extreme case, the sanction may merit the deprivation of life.
However, we recognize that a strict, literal, and unwavering lex talionis, the strict application of an "eye for an eye," a "tooth for a tooth," and a "life for a life," is not right. There is a huge difference in intentionality of an act that the law recognizes must be considered. There is a huge difference between an eye lost as a result of accident, or as a result of another's negligence, recklessness, or maliciousness. Though the same eye may be lost, it is different if it occurs by accident than if it occurs through malice aforethought. We recognize that there is more to crime than "material content of consequences," but that "formal wrongfulness" is to be considered. The sanction must be tied to this "formal wrongfulness." For this reason crimes are defined by, and ranges of punishment assessed with reference to, the "formal wrongfulness" or intent of an act. We generally do not punish using "strict liability," we generally consider the scienter or the mens rea of the actor.**
Finnis completes his treatment of the law and sanction by observing something that is frequently lost in the mind of the consequentialist or utilitarian. The wrongful act of the criminal hurts more than the common good. Or perhaps it is more accurate to say that the criminal hurts the common good in two ways: the common good as comprehending all others outside the criminal actor, and the common good as it comprehends the criminal actor himself. In acting outside of the envelope of acceptable behavior, the criminal gains an advantage not afforded to those who comply within that envelope of acceptable behavior. To that extent, the others are harmed by the appropriative, selfish behavior of the criminal.
NLNR, 264.
But the criminal does more than hurt others, he also hurts himself in acting in this manner. The criminal, therefore, ought not simply to be punished, and that be the end of it. That may, in some semblance, be a requirement necessary in justice to right the wrong against the common good not including the criminal. We must not forget, however, the wrong the criminal has done to himself.
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*Finnis gives an odd example when he suggests that "conscientious terrorism" must be "suppressed with as much conscientious vigour as other forms of criminality." NLNR, 261. It does not seem like a conscientious terrorist is any different than a conscientious thief, rapist, or fraudfeasor. So if this is what Finnis sees as a defect in Aristotle (the failure to account for a "conscientious terrorist" however that be different from an "unconscientious terrorist," then Aristotle's lapse is hardly significant.
**Scienter (which comes from the Latin word for knowingly) is used to describe the guilty knowledge that is required under criminal law to hold the actor accountable for his or her actions. The term scienter is generally interchangeable with the broader term mens rea (Latin for "guilty mind") which refers to the level of intent in the actor (innocent, negligent, reckless, malicious) as distinguished from the physical aspects of the act itself (referred to as the actus reus = Latin for "guilty act"). As a legal term, scienter is broader than mens rea in that it is also a concept that is applied in civil liability (e.g., civil fraud requires scienter) as well as criminal liability. On the other hand, the notion of mens rea is exclusively criminal in application and cannot be said to have any role in civil litigation.
It is simply a reality of the human condition--to the degree that it must be universally conceded--that justice must be secured by force, and it follows that law, the instrument of justice, must likewise ally itself with force. A law without sanction, without effective force or executory power, when faced with recalcitrants, with those who would disrupt the community and its common good, would be no law. A law without sanction among a world of those who respect only sanction is as good as no law at all. An inefficacious law is hardly better than no law at all.
Finnis believes that, for all the truth behind the fact that law and coercion are almost twins, there has been a tendency to oversimplify the relationship between law and coercion. The fault for that oversimplification of that relationship he places upon Aristotle and those who have accepted uncritically Aristotle's teaching on the relationship between law and its sanction, specifically on his perception that those who resist law are ipso facto the lawless ones. Might it be that there is principled resistance to law which Aristotle did not consider?
Vincent van Gogh's "Prisoner's Exercising (after Doré)
Aristotle taught that law enjoyed two modes of operation: a directive mode and a coercive mode. Aristotle postulated that the coercive mode was required as a result of the "recalcitrance of the selfish, the brutish many whose unprincipled egocentricity can be moderated only by a direct threat to their self-interest." NLNR, 262. But the recalcitrant is not necessarily ipso facto unreasonable. It might be that the law is unreasonable and so ought to be resisted, and, if so, Aristotle's assumption that the recalcitrant is by definition wicked is overly simplistic:
[T]he fact is that recalcitrance--refusal or failure to comply with authoritative stipulations for co-ordination of action for common good [i.e., law]--can be rooted not only in obstinate self-centredness, or in careless indifference to common good and to stipulations made for their sake, but also in high-minded conscientious opposition to the demands of this or that (or perhaps each and every) stipulation.
NLNR, 260.*
The law's coercive power goes beyond mere sanction or punishment. It allows for resistance, particular to external assaults (intruders), but also to internal assaults (terrorists). It allows for the arrest of those suspected of past offenses or even of those who may be suspected of planning future offenses. It allows for seizure of persons and of goods before adjudication of wrongs so as to prevent their escaping from the sanction of law. The law also provides for adjudicatory procedures and for the execution of judgments. But these sophisticated forms of enforcement in some way or other ultimately come down to the use of force or the threat of the use of force and may be said to be direct or indirect punishment. So it behooves us to study the most essential or fundamental kernel of legal sanction: punishment, specifically criminal punishment.
The fundamental reason justifying criminal punishment in Finnis's view is that "certain forms of conduct including certain omissions" will "occur less frequently than they otherwise would" if punishment is meted out to offenders. NLNR, 261. The entire aim of the criminal legal system is to delineate a sort of regime which defines the boundaries of that sort of activity which is consonant with the common good (which includes acceptable forms of individual autonomy) and that sort of activity which is considered to be "selfish[ly] indifferen[t] or individualistic demands for licence" and which is considered appropriating or infringing of others' proper and legitimate autonomy. NLNR, 261.
[I]n this mode of association no one is made to live his life for the benefit or convenience of others, and each is enabled to conduct his own life (to constitute himself over his span of time) with a clear knowledge and foreknowledge of the appropriate common way and of the cost of deviation from it.NLNR, 261.
There are, however, generally considered to be limits place on that regime, limits that are generally divided into substantive due process and procedural due process. These limit "very substantially . . . the pursuit of the goal of eliminating or diminishing the undesired forms of conduct." NLNR, 261.
Why, one the one hand, do we establish a regime that has the goal of eliminating or diminishing undesired forms of conduct and yet construct a competing regime, so to speak, or at least adjunct to the regime, which works at cross-purposes to that principle regime by attenuating, mitigating, or preventing its enforcement? Why not simply allow for the regime to be pursued sort of like a gardener would want to remove the weeds from his garden. What sort of gardener imposes limits on himself in getting rid of weeds?
The answer for Finnis lies in the distinction between humans and weeds, locusts, or sparrows:
[T]he legal sanction [under criminal law regimes], then, is to be a human response to human needs, not modelled on a campaign of 'social defense' against a plague of locusts, or sparrows. There is the need of almost every member of society to be taught what the requirements of the law--the common path for pursuing the common good--actually are; and taught not by sermons, or pages of find print, but by the public and (relatively!) vivid drama of the apprehension, trial, and punishment of those who depart from that stipulated common way.
NLNR, 262. The need for this "drama" is felt by those who would otherwise resist the "stipulated common way," as well as those who would otherwise abide by it. To assault those who depart from the "stipulated common way" unfairly--through unfair processes--would detract from this "dramatic" role of the law. It would change the affair from being one of punishment to being one of social hygiene or social cleansing. The latter is simply seen as an abusive, inhuman state of affairs by the common assessment of men. The sanction, and the process of meting out sanction, must be tied to justice. Or else the regime will have the opposite effect upon the law-abiding.
Sanctions are punishment because they are required in reason to avoid injustice, to maintain a rational order of proportionate equality, or fairness, as between all members of society. For when someone, who really could have chosen otherwise, manifests in action a preference (whether by intention, recklessness, or negligence) for his own interests, his own freedom of choice and action, as against the common interests and the legally defined common way-of-action, then in and by that very action he gains a certain sort of advantage over those who have restrained themselves, restricted their pursuit of their own interests, in order to abide by the law. . . . If those in authority allowed the retention of unfairly gained advantages they would not only lose the allegiance of the disadvantaged law-abiding but indeed forfeit their title, in reason, to that allegiance. For the authority of rulers derives from their opportunity to foster the common good, and a fair balance of benefits and burdens within a community is an important aspect of that common good.NLNR, 263.
Punishment, then, has this sort of equalization role. It seeks "to restore the distributively just balance of advantages between the criminal and the law-abiding." It serves to right the wrong, to balance the ship of state after the criminal has wrongfully caused it to tip in his favor. This balance is obtained by depriving the criminal of his benefits, and, if that cannot be done (or in addition to that being done) to "rectif[y] the disturbed pattern of distribution . . . by depriving the convicted criminal of his freedom of choice, proportionately to the degree to which he had exercised his freedom, his personality in the unlawful act." NLNR, 263. An "eye" so to speak, for an "eye." If the criminal law could supersede time, it could undo the act. As it is, the criminal law cannot, and so the punishment must be "diachronic," which, of course, means substitutionary. NLNR, 263. The substitution may be by fine, by deprivation of freedom, by removal of civil liberties, by actual imprisonment, or by any combination of those. In the extreme case, the sanction may merit the deprivation of life.
However, we recognize that a strict, literal, and unwavering lex talionis, the strict application of an "eye for an eye," a "tooth for a tooth," and a "life for a life," is not right. There is a huge difference in intentionality of an act that the law recognizes must be considered. There is a huge difference between an eye lost as a result of accident, or as a result of another's negligence, recklessness, or maliciousness. Though the same eye may be lost, it is different if it occurs by accident than if it occurs through malice aforethought. We recognize that there is more to crime than "material content of consequences," but that "formal wrongfulness" is to be considered. The sanction must be tied to this "formal wrongfulness." For this reason crimes are defined by, and ranges of punishment assessed with reference to, the "formal wrongfulness" or intent of an act. We generally do not punish using "strict liability," we generally consider the scienter or the mens rea of the actor.**
Finnis completes his treatment of the law and sanction by observing something that is frequently lost in the mind of the consequentialist or utilitarian. The wrongful act of the criminal hurts more than the common good. Or perhaps it is more accurate to say that the criminal hurts the common good in two ways: the common good as comprehending all others outside the criminal actor, and the common good as it comprehends the criminal actor himself. In acting outside of the envelope of acceptable behavior, the criminal gains an advantage not afforded to those who comply within that envelope of acceptable behavior. To that extent, the others are harmed by the appropriative, selfish behavior of the criminal.
[The criminal] seized the advantage of self-preference, and perhaps of psychological satisfaction and/or of loot, but all at the price of diminishing his personality, his participation in human good; for such participation is only through the reasonable pursuit, realization, and enjoyment of basic goods.
NLNR, 264.
But the criminal does more than hurt others, he also hurts himself in acting in this manner. The criminal, therefore, ought not simply to be punished, and that be the end of it. That may, in some semblance, be a requirement necessary in justice to right the wrong against the common good not including the criminal. We must not forget, however, the wrong the criminal has done to himself.
The punitive sanction ought therefore to be adapted so that, within the framework of its two sets of defining purposes already indicated [encouraging the law-abiding and discouraging the law-infringing], it may work to restore reasonable personality in the offender, reforming him for the sake not only of others but of himself: to lead a good and useful life.'NLNR, 264.
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*Finnis gives an odd example when he suggests that "conscientious terrorism" must be "suppressed with as much conscientious vigour as other forms of criminality." NLNR, 261. It does not seem like a conscientious terrorist is any different than a conscientious thief, rapist, or fraudfeasor. So if this is what Finnis sees as a defect in Aristotle (the failure to account for a "conscientious terrorist" however that be different from an "unconscientious terrorist," then Aristotle's lapse is hardly significant.
**Scienter (which comes from the Latin word for knowingly) is used to describe the guilty knowledge that is required under criminal law to hold the actor accountable for his or her actions. The term scienter is generally interchangeable with the broader term mens rea (Latin for "guilty mind") which refers to the level of intent in the actor (innocent, negligent, reckless, malicious) as distinguished from the physical aspects of the act itself (referred to as the actus reus = Latin for "guilty act"). As a legal term, scienter is broader than mens rea in that it is also a concept that is applied in civil liability (e.g., civil fraud requires scienter) as well as criminal liability. On the other hand, the notion of mens rea is exclusively criminal in application and cannot be said to have any role in civil litigation.
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