Distorting Justice

There are many confronting—even offensive—precepts in the ancient Hebrew wisdom literature. The possibility of offence in these precepts is deliberate: it separates the stubbornly proud from the receptively humble. One precept is: The ungodly do not understand justice, but justice is plain to those who fear God.

As Australia discards more of its Judeo-Christian heritage, but has nothing so reasonable and coherent to replace it, there are signs that our justice system is suffering serious distortions even if we define justice very simply: the firm determination to give our neighbour their due. Justice is now less likely to be delivered in more cases: people will not get what they’re due. Surveying these current and potential distortions may help us monitor—and hopefully correct—them. Aiding the survey is the example of the Soviet Union and a chronicler, Alexander Solzhenitsyn, of its calamitous injustices. We know what to avoid. Another aid is Catholic philosopher Jacques Maritain’s shrewd publication Man and the State (1951). We know what to protect.

The fundamental principle of all institutions—including the institutions of state, church, marriage and family—is that they exist to serve humanity. Humanity doesn’t exist to serve the institutions. In a sane society, institutions aim to protect and enhance the dignity, liberty and responsibility of each person. Justice, in all its forms, is essential. This fundamental principle was articulated—via illustration—by Jesus when he saw the harsh application of sabbatical laws, burdening people instead of easing their burdens. He taught, The Sabbath was created for man. Man was not created for the Sabbath. Autocratic governments reverse this principle in a myriad of ways: people find themselves burdened, rather than assisted, by rulers.

Maritain traced the absolutist idea that monarchs were God’s special appointees to its secularised expression in the dictatorships of Nazi Germany, Fascist Italy and Bolshevist Russia.

These states treated their people as if they were infants who couldn’t be trusted to make good decisions. They needed the firm direction of their betters in government. No doubt, rulers must be leaders, reminding the people of what they are capable of doing and being. But this shouldn’t become perverted by insisting people support—without question—the government’s dictates. Maritain exposed the patronising state’s spurious devotion to the people’s well-being:

Those who distrust the people while appealing to the highest feelings and blood of the people cheat and betray the people. The first axiom and precept of democracy is to trust the people. Trust the people, respect the people, trust them even and first of all while awakening them, that is, while putting yourself at the service of their human dignity.

Democratic nations can unwittingly adopt the model of the absolutist state that doesn’t trust the good sense of its people. As life increases in complexity and the role of government likewise increases in complexity there’s the almost inevitable tendency for state agencies to presume power beyond legitimate limits. No nation’s dignity is ensured by military, economic, cultural or technological might; neither is government legitimacy ensured by the expansion of its services and bureaucracy. True dignity and legitimacy for any government come from its exercise of justice, its implementation of fair laws and processes reflecting the people’s legitimate desire for an equitable, orderly society.

Maritain observed that governments, with their naturally wide remit, become focused on their expansion, activities and autonomy. They may forget that they exist for the people. The priorities of authorities subtly change—to the detriment of their service:

Those who specialise in the affairs of the whole have a propensity to take themselves for the whole; the general staffs to take themselves for the whole army, the Church authorities for the whole Church; the state for the whole body politic. By the same token, the State tends to ascribe to itself a peculiar common good—its own preservation and growth—distinct from both the public order and welfare which are its final end.

This isn’t necessarily a malicious and intrusive presumption; it may be intrinsic to active as opposed to inactive bureaucracies. But both forms of bureaucracy—conscientious and moribund—frustrate liberty and thereby distort dignity and justice. In Australia, our choices are curtailed by the fine mesh of little laws that reflect bureaucratic preferences rather than practical necessities. This is one area of current distortion.

A profound threat to justice comes with a change in anthropology: how we view humanity impacts our justice system. When we no longer see human life as sacred, the door is open to profound—indeed catastrophic—levels of cruelty and injustice. Dignity and justice are intimately related; justice properly recognises individual dignity. There’s no greater guarantee of inviolable dignity than the doctrine that the life of every person is sacred. It’s a bulwark that protects people from the worst forms of oppression.

Most states in Australia are well advanced towards denying the sanctity of life. Euthanasia and full-term-abortion laws cannot be reconciled with a truly sacred, transcendent view of humanity. The long-term effect on our justice system of this change in anthropology may be woeful.

The trouble is that once life is viewed in a profane way, the concept of justice is readily distorted by other imperatives. Political goals, greed, envy and ideology gain force. We can gauge how this change might impact our justice system by considering how a change in anthropology impacted Russia’s justice—and especially its penal—system. Two books, Dostoevsky’s Memoirs from the House of the Dead and Solzhenitsyn’s Gulag Archipelago, provide instruction.

The tsars, as royal figureheads of the Russian Orthodox Church, maintained—in firm principle at least—the sanctity of life. This was reflected in the operation of their penal camps. Memoirs from the House of the Dead is Dostoevsky’s chronicle of his years in a tsarist labour camp. Dostoevsky, as a young man, was associated with a subversive group. He was arrested and sentenced to four years in a Siberian camp, followed by six years as an army conscript. He records his privations, emotional isolation and hard work. He endured constant propinquity with murderers, vicious guards and sneaky informers. But he also records that skilful prisoners could ply their skills to make a tiny amount of money for prison luxuries. They had visitation rights and were sometimes accompanied by their families, who would live in a nearby village. The prisoners had Sundays and Church holy days (there were a lot of these) free from work and had some valuable contact with neighbouring townspeople. Orthodox religious practice was encouraged. Lazing in the hospital was possible. The prisoners kept pets. Moreover, among the commandants and guards were some reasonable men. Prisoners were freed at the end of their sentence and some gained early release through pardons or the influence of advocates.

The atheist Soviet communists denied any transcendent meaning or basis for human life. In their gulags, prisoners were frequently beaten or worked to death. There were no holidays and very few full days free from work. Lucky prisoners might get a half day to rest each week. Pets were banned. Visitation was once per year but often cancelled on the day. No one could have possessions beyond their prison garb, a bowl and a spoon. No one could use their skills to gain anything—there was no prison economy: searches and confiscation were frequent and thorough. Contact with neighbouring people was forbidden; letters might be written once a year but camp authorities could destroy outgoing and incoming mail. At the end of their term (usually ten years) prisoners often discovered their sentence had been doubled. Medical care was absent or minimal. News from the outside world was limited to the rumours conveyed by new prisoners. There were no advocates. And these prisoners were the fortunate ones. Many millions of arrested people were quickly executed.

Solzhenitsyn compared the tsarist and the communist systems and found the tsarist system, especially in its later years, almost comically mild. If any of the zeks (gulag inmates) could have experienced the tsarist labour camps, the zeks would have felt as if they were on holiday. These differences were not accidental; they reflected two contrasting anthropologies. What we believe about ourselves matters, having wide ramifications—including in our justice and penal systems.

Australians are deluded if we think the abandonment of the sanctity of life cannot bring a similar decline in careful, individuated justice. Hopefully, we won’t follow the dreadful example of the Soviets, but rejecting the sanctity of life has never brought a consistent increase in justice.

The Soviet communists were clear about the causes of injustice and hardship. Private property, free enterprise, distinct social classes, religious beliefs, and notions of unchanging human essence were all considered evils requiring correction. The Soviets tried long and hard—mostly using violence—to correct them. The result was prolonged oppression on an unimaginably immense scale. They systematically uprooted customs, values, and manners that had developed over centuries and had provided a workable framework for life.

In Australia we haven’t reached a point where a set of dogmas designed to solve our society’s problems has been articulated and forcibly imposed. We’re still at a confused stage. Fashionable schemes emerge and fade. But perhaps we can identify a set of currently influential assumptions that have consequences for our justice system. These assumptions include: people can live happily without religion; government provision is better than private provision; existence precedes essence, and human nature is consequently fluid; ecosystems are fragile and easily damaged rather than resilient and self-renewing.

These assumptions are distorting our justice system and the equity of our society. For example, the idea that government provision for retirement is best is burdening the young with debt to fund the pensions and health care of the old. The notion that existence precedes essence and human nature is fluid means that parents in Victoria face jail if they obstruct the gender transformation of their son or daughter. The fear that nature is fragile results in businesses—especially mining and innovative manufacturing—waiting for many years for government approval or refusal. None of this shows any determination to give another person their due.

A more fundamental threat is casting aside the concept of natural law. Natural law is based on stable human essence: humanity has a particular being with a consistent set of characteristics that direct us to behave in ways that fulfil our end, our purpose. The concept of natural law resulted from developments in Greek and Christian thought, but the reality is universal. It isn’t a written code; it’s intuitive and connatural. The subtle understanding of the good to seek and the evil to avoid unfolds in the shared experience of generations in their particular setting. Thus, the modes, the precise rules and the specific expression of natural law vary from culture to culture, people to people and from age to age, but what doesn’t vary is the existence of rights and wrongs, taboos and liberties, ennobling virtues and degrading vices, human ends and societal goals. Maritain writes:

I am taking it for granted that we admit that there is a human nature, and that human nature is the same in all men. I am taking it for granted that we also admit that man is a being gifted with intelligence, and who as such, acts with an understanding of what he is doing, and therefore with the power to determine for himself the ends which he pursues. On the other hand, possessed of a nature, or an ontologic structure which is a locus of intelligible necessities, man possesses ends which necessarily correspond to his essential constitution and which are the same for all … But since man is endowed with intelligence it is up to him to put himself in tune with the ends necessarily demanded by his nature. This means that there is, by the very virtue of human nature, an order of a disposition which human reason can discover and according to which human will must act in order to attune itself to the essential and necessary ends of the human being. The unwritten law, or natural law, is nothing more than that.

Humanity’s “ontologic structure” and “the ends necessarily demanded by his nature”—which Maritain took for granted—are hotly disputed by most postmodernists who, unfortunately, occupy crucial areas of influence. We could almost define postmodernism as the denial of an essential human nature preceding existence. Instead, they emphasise flux, oppressive historical constructs, power and language games, and choices without any guaranteed meaning. The meta-narrative of stable human nature—and from that premise, natural law—is dismantled. Contingency is exalted.

We haven’t begun clearly to understand what this dismantling will mean for our society and our legal system. However, we’re cautioned: the Soviets likewise denied the existence of essential human nature, believing people could be readily moulded to conform to communist ideals.

But as Solzhenitsyn wryly observed in The First Circle, grand Bolshevist planning foundered on the sharp rock of stubborn human nature, although it took a long time for the regime to sink. In the meantime whole populations were crushed because they would not—could not—conform to muddle-headed ideals that contradicted intractable personal realities.

Many people, including many in responsible positions, have largely rejected the ethical demands of Judeo-Christianity. Today, the only one of the Ten Commandments that people are expected to obey is Thou shalt not steal. The rest of the commandments are commonly regarded as negotiable if not redundant. Into this emptiness the vague idea of community expectations is substituted. When the Albanese government appointed Jayne Jagot to the High Court of Australia, a prominent legal commentator said the appointment would meet with wide acclaim because the promotion of a woman to that position accorded with “community expectations”. Which community, with what values? How were community expectations canvassed? Are nebulous and changeable community expectations at all relevant to such an important role? It seems only a subset of the legal community was consulted—which is perhaps appropriate—but why did the commentator focus on community expectations?

The justification of rules, appointments and actions based on community expectations has already impacted print and digital publishing and what may be posted on YouTube or expressed on social media platforms. Censorship based on community expectations is rising. Notions of community expectations have impacted institution and business policy documents and decision-making. Usually, the community expectations seem to align closely with the aims of those promoting aggressively secular, liberal values. It’s a convenient convergence.

There’s the danger that community expectations—however defined or expressed—will supplant or weaken the concepts of natural law and the precedents of common law, let alone Judeo-Christian morality. Community expectations could be used to justify any action whatsoever; the expectations are ephemeral and manipulable and therefore an unstable basis for any serious judgment.

There’s a further problem. A population with a large proportion of people dependent on welfare payments, easily cowed by forceful authority, heavily influenced by social media, insufficiently sceptical of the twenty-four-hour news cycle and partly fuddled by alcohol, drugs and sedatives will not suddenly express prudent values. Community expectations and goals may well be foolish and unfair.

Maritain noted that the social processes in a democracy are only as good as the sturdy independence and mature rectitude of the population. He identified varieties in the common psychology; some impulses are superficial and unhelpful while others are deeper and worthy:

In what can be called the common psyche of the people there is a huge variety of levels and degrees. At the most superficial level there are the momentary trends of opinion, as transient as the waves on the sea, and subjected to all winds of anxiety, fear, particular passions, or particular interests. At deeper levels, there are the real needs of the multitude. At the deepest level, there is the will to live together, and the obscure consciousness of a common destiny and vocation, and finally the natural trend of the human will, considered in its essence, toward the good.

Shallow community expectations have become another distorting influence on governments, businesses and courts.

In Soviet Russia the media existed only to bolster the Communist Party. Prominent people incriminated by the Party were immediately slandered by the state’s mass media. Reports were vehement. Of course, the vast majority of the 25 million people sentenced to gulags or executed by the Soviet communists got no media coverage—that was reserved to smear high-profile “traitors” and “spies”.

There’s a welcome and obvious contrast with the mass media in Australia where coverage of legal cases and interrogation of authorities and their decisions is fairer and often detailed—in most cases. But there are significant segments of the media whose coverage of sensational legal cases is irresponsible, seemingly aimed at prejudicing public opinion and creating biased juries. Media reports around Lindy Chamberlain and George Pell’s legal imbroglios were flagrantly irresponsible for years. As the media diversifies in technology and becomes more pervasive—and more enraged on social media platforms—the threat posed to fair legal processes is alarmingly obvious.

There’s the additional danger of large privately-owned media entities echoing the government’s values. This doesn’t need to be active collusion: government and big businesses don’t need to conspire because the similarity of mindset and concerns ensures uniformity of purpose and message. This has always been a problem in democracies, but the confluence of interests appears more overt in recent years around issues with significant legal consequences: feminism; domestic violence and male malefaction; climate change and biosecurity; Aboriginal land rights; restrictions on mining, forestry and fishing; and the expansion of LGBT+ rights. This confluence will hinder objective judgments and limit opportunities to express dissent. When the interests of big government and big business coincide, mere commoners are in big trouble.

Maritain insisted on the value of a free press to uncover the truth and promote justice: it’s a vital role. Voices other than the government’s droning—or big business’s confident voice—must be heard:

people have the means—though not directly used by themselves—of the press, the radio, and the other means of expressing public opinion, when they are free. By right, freedom of the press is not of itself a limitless freedom, the State may restrict it for the sake of the common good, but as a matter of fact, and in the face of the inevitably growing power of the State, as well as the achievements of which the totalitarian States have been capable in the world, the people obey a sound political reflex when they stick to the freedom of the press as to a sacred good and protection …

A free people needs a free press, I mean free from the State, and free also from economic bondage and the power of money.

People accused of crimes in Australia are presumed innocent until proven guilty beyond a reasonable doubt. This principle is never secure although it is embedded in our laws and legal processes. People—including legal experts and politicians—are apt to forget it and start presuming guilt until the accused person is (usually after a long, distressing battle) proven innocent. Readers of the Rumpole stories by British barrister John Mortimer will remember Horace Rumpole—his wig dishevelled and his robes stained—constantly reminding his colleagues, QCs, Crown prosecutors, journalists, juries and even judges that his client is innocent until proven guilty. The sound principle is that it’s better to allow a (possibly) guilty person to go unpunished than mistakenly punish an innocent person.

The presumption of innocence needs frequent reinforcement. After the High Court quashed the charges against Cardinal Pell, Victorian Premier Daniel Andrews declared: “I make no comment about today’s High Court decision. But I have a message to every victim and survivor of child sexual abuse: I see you. I hear you. I believe you.” Three years later, when Cardinal Pell died, Premier Andrews repeated his message to victims of childhood sexual abuse but for added emphasis he spoke in the plural, although it wasn’t clear who this “we” represented: “we see you, we believe you, we support you, and you are at the centre of not only our thoughts, not only our words, but our actions”.

Australia needed a Horace Rumpole to remind Andrews that an accusation doesn’t establish guilt. In effect, Andrews was presuming the guilt of those accused of sexually abusing minors by assuming the credibility of their accusers. It’s a position guaranteed to distort justice. It ignores the possibility of perjury, faulty memories, or some deeply disturbed and unreliable person making very damaging allegations—for whatever twisted reasons—against innocent people. It also ignores the possibility of incompetence or outright bigotry among police and legal professionals.

In Australia, politicians and bureaucrats multiply fussy rules—affecting everyone’s liberty—to hinder potential moral or legal infractions, rather than making a public, dissuasive example of wrong-doers. For example, owning a firearm is becoming harder with more restrictions and regulations, but the punishment for those who steal firearms from legitimate owners or who use firearms in crimes has not increased in severity. It would be fairer for honest owners of firearms if the rules around owning firearms were relaxed but the punishments meted out to those few people who misused firearms were made far more severe.

The Mosaic laws (not including the cultic laws) are comparatively few, but the punishments are hard and public. Miscreants, after careful investigation to establish innocence or guilt, became cautionary examples—through their severe punishment—to the community. Contemporary law-makers may consider the Mosaic code crude and unsophisticated; but there’s wisdom because the law-abiding majority are not burdened by legal micro-management. If we dismiss the Ten Commandments, we may find ourselves hampered by ten thousand commandments.

Maritain was aghast at the wreckage of nations at the end of the 1940s when he wrote Man and the State. He knew that decent people wanting to build stable, ethical societies would need fortitude. Today, we need patient courage to strengthen the reasonable laws, customs and principles that were bequeathed to us. It would be easy to lose hope and give up. But despair is defeat. Maritain wrote:

The worst temptation for mankind, in the epochs of dark night and universal perturbation, is to give up Moral Reason. Reason must never abdicate. The task of ethics is humble but it is also magnanimous in carrying out the mutable application of immutable moral principles even in the midst of the agonies of an unhappy world, as far as there is in it a gleam of humanity.

Gary Furnell is a frequent contributor from rural New South Wales. The Jacques Maritain quotes are from Man and the State, University of Chicago Press, 1951.