Wednesday, April 20, 2011

Q is for ... Quis custodiet ipsos custodes?

The phrase, literally translating as "who will watch the watchmen themselves," first found expression in the Satires of the Roman poet Juvenal. The inference is that setting up one group to have authority over another does not make them intrinsically worthy of that power: specifically, the creation of a police state does not, in and of itself, guarantee that the police will not abuse their authority and flout the law.

Societies throughout history have recognized that law must be enforced if it is to be respected, which is the rationale for having police in the first place. This philosophy found its clearest expression under the Greek lawmaker Draco, who produced the first written constitution of the city-state of Athens and whose name is preserved in the eponym "draconian." Even minor infractions against the laws set down by Draco earned the death penalty; Draco himself is said to have remarked that he considered these so-called lesser crimes deserving of such a harsh punishment, and had no greater to offer for crimes of greater severity. In the draconian perspective, the fundamental crime is to break the law - the specifics of which law is broken, how and why, are unimportant. The rule of law itself is paramount, and sufficient justification for even the strictest interpretation of its codes.

Neither is this "zero tolerance" approach an historical aberration. The application of Shar’ia law in modern states such as Saudi Arabia frequently appears in Western eyes to be harsh and barbaric; Singapore treats littering as a major crime; in Maricopa County, AZ, Sheriff Joe Arpaio charges persons unable to verify their American citizenship with the crime of human trafficking - the 'traffic' being themselves, on the assumption they're in his jurisdiction illegally. All of these examples illustrate a philosophy of law in which justice consists of a strict implementation of the fullest penalties possible to all criminal acts; if, in the Platonic sense, law is seen as an instrument of the Platonic Good, then this conception of justice is essentially applying the standards of the Platonic ideal to the imperfect real world. The problem with this approach is that it assumes laws which are finite in scope and fallible in application - because they are created and maintained by imperfect human beings, and not manifestations of some Platonic higher realm - to be infinite and infallible.

What most of us would think of as "justice" applies a more casuistic perspective. Fairness dictates that we consider all factors that contributed to a criminal act, including factors that might mitigate the responsibility of the criminal or the severity of his punishment; further, fairness dictates that we consider the possibility that the law itself, either in its conception or its application, may be at fault. The essential components of a system of justice, as opposed to one of law, are doubt and development. A just system is one that is never certain of its pronouncements, and always willing to revise them.

It is also marked by accountability. There are, broadly speaking, four aspects to a legal system: the legislature that drafts laws, the executive that authorizes them, the judiciary that rules on cases before the law, and the police that enforce the laws. After Montesquieu, we are accustomed to see these as separate - indeed, as citizens of a police state we are accustomed to see the fourth as something separate from the first three - but in fact all four can coexist within one body and still constitute the essence of government. In fact, no government can exist that does not embody these four functions. Governments may exist to provide services under the social contract, but they can only do so if they first serve some corpus of law, even if that law is as primitive as the arbitrary pronouncements of a capricious dictator. It is not too far a stretch to suggest that the fairness of a social contract is predicted by the fairness with which the government conducts its fundamental functions in regard to the law.

This brings us, by a circuitous route, back to Juvenal's question. Plato's resolution, incidentally, was to have the watchmen watch themselves - tell themselves the "noble lie" that they were not as other men, that their duty made them greater, stronger, impervious to temptation and duty-bound to demonstrate their superiority with exhibitions of selfless and even-handed process of law. If one accepts Plato's reasoning here, it seems not unreasonable to ask why only policemen should tell themselves this "noble lie" - can not a whole society lie to themselves in this fashion, and do away with both police and criminals in the process? Further: if everybody is capable of deceiving themselves into accepting a weight of moral duty that does not actually burden them in practice, there seems no more need for any of the other three functions of prosecuting law than there is that of policing it. Then there is no need for government of any kind, and a state of anarchy exists. This chronicler encounters serious difficulty when attempting to reconcile such a state of affairs with a general acceptance of any coherent moral code; it seems, rather, that all we would have accomplished would be to rename what we now call "crimes" as mere "actions," no more reprehensible than kissing a baby or eating an ice-cream.

Moreover, there seems a flaw in Plato's premise that anybody can succeed at telling themselves this "noble lie" indefinitely - especially when they occupy a position of power over others, the temptation must arise to define, rather than simply accept, the rights and wrongs of human conduct. This tendency in the powerful towards overreach and corruption of the highest ideals is thoroughly explored in Alan Moore's seminal graphic novel, Watchmen - the title is, of course, a nod to the ancient Juvenalia, inter alia. The arrogance of Ozymandias; the intolerance of Rorschach; the cynicism of the Comedian; the despair of Nite Owl; the cosmic indifference of Dr. Manhattan; all of these illustrate the perils of power.

And then, of course, there's Silk Spectre, and perils of an entirely different dimension.

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