People v. State

fairly undermining public confidence in the administration of justice

Justice: What’s that?

February 13, 2012 By: John Kindley Category: Uncategorized

Norm Pattis posts about a radio debate he had with a fellow named Jerome Corsi:

A natural born citizen, according to Corsi, is a person not just born in the United States, but also spawned by two parents who are also citizens. . . .

Support for this interpretation of the phrase is gleaned from the writings of an eighteenth century Swiss writer, Emerich Vattel. Vattel wrote: “The natives or natural born citizens are those born in the country of parents who are citizens.” There it is, plain as day. An eighteenth century writer asserted that natural law made this so. . . .

This is the sort of logic that gets pro se litigants in trouble all the time. A little bit of knowledge is, the aphorists teach, a dangerous thing. Natural law has a disturbing tendency to reflect the preferences and biases of those who seek to discern it. Aristotle taught then some were slaves by nature; most of us think otherwise today, and thankfully so. I am with Jeremy Bentham on the topic of natural law: it is little more than nonsense on stilts.

I commented:

Natural law is nonsense? What should guide legislators, then? So soon you’ve given up on Spooner? Of course I agree that natural law arguments, i.e. arguments about what is right and just, won’t get you far in trying to persuade judges. But I don’t see the connection of Vattel’s claim to natural law.

Norm responded:

I don’t see Vattel that way either, but Corsi does. As for natural law, I just don’t believe in right reason. I suppose I am a methodological anarchist and believe simply in juries serving as a counterweight. As for justice: What’s that?

I tried to reply as follows, but Norm’s blogging software apparently doesn’t like comments longer than 5 sentences:

Justice, I think, is the absence of crime. Which I think amounts to a very strong presumption against punishment, because even Blackstone held that the only legitimate purpose of the criminal law and of punishment is to prevent future crime. Whether punishment does so is speculative. Punishment itself, on the other hand, resembles crime. The jury, and especially its requirement that the jurors be unanimous before a person is convicted of a crime, embodies procedurally that presumption against punishment. None of which, I acknowledge, tells us anything about what a “natural born citizen” is.

Of course, I’ve said almost the exact same thing before in a number of posts on this blog, but I repeat it because I was frustrated by Norm’s blogging platform and because I regard it as one of my minor contributions to the practical blawgosphere: Saving the word “Justice” for zealous criminal defense. (Although I haven’t really called attention to it before, I note that Tony Serra’s biography is titled Lust for Justice.)

11 Comments to “Justice: What’s that?”

  1. You can choose to define “justice” as the absence of crime, I suppose, just as you can declare punishment to be crime. You can have a private language, and with those who learn to speak it, you can perhaps carry on meaningful discourse. But in common English that’s not what “justice” means any more than “punishment” is understood to be criminal.

    What you’re really saying, as I understand it, is that your idea of a good society is one in which nobody is punished. Fair enough. It’s not my measure (and I think not the measure most folks would have), but at least it’s a coherent statement in English. Your insistence on tossing “justice” into the mix confuses for no particular purpose I can see except that you like to keep saying that you’re an advocate of “justice” despite the fact that almost nobody has any idea what you mean until you give them the secret definition.

    • John Kindley says:

      Part of this (but only part) is indeed a re-framing of terms, which goes along with trying to present a different way of looking at things, which the very title of this blog tries to do, by putting the State in the place that the criminal defendant finds himself.

      I said punishment “resembles” crime. It does so even when it is “just,” i.e., when it plausibly serves to decrease the likelihood of future crime, as, e.g., Manson’s incarceration has presumably done. That’s why we have a presumption against it. On the other hand, when it is inflicted on the innocent, or on people who are “guilty” of “crimes” like pot possession or gambling, it is really and truly a “crime,” and should be recognized as such.

      Indeed, a truly good society would be one in which nobody is punished, because nobody is inclined to commit crime (because the systemic robbery which prevails in our society and causes so much poverty and inequality is eliminated?). A society that is not that good but that is better than ours would not incarcerate as many people as ours does. It would punish only when truly necessary to prevent future crime; it would only punish things practically the whole “country” agrees should be punished (which is the idea behind the Trial By Jury). Surely you agree with that.

      I would ask you to consider whether you yourself are not immersed in a “private language,” that perhaps is admittedly spoken by a goodly number of criminal defense attorneys, a world you have been immersed in far longer than I, and that is perhaps unduly influenced by the ghost of Clarence Darrow. Consider what your average layman watching the movie True Believer, starring James Woods and based on one of Serra’s cases, on the other hand, would say to himself about the character played by Woods. He’d probably say that guy is fighting for justice. (And people like my hypothetical moviegoer, with their language, are the people who sit on juries.) Now, you and I know, and you know better than me, that sometimes the client is not innocent but in fact is a murdering son of a bitch. But you and I know that the attorney representing that murdering son of a bitch, and who would be all too glad to get his client off scott free, is still fighting the good fight. What is the good fight but a fight for justice? You may call that a stretch of language. I don’t.

      Now, I don’t know whether Tony Serra chose the title of his biography, or whether he approved of it. But he is quoted somewhere in there, and I quoted it in one of my posts a long time back, as describing the criminal defense attorney as for the jury the incarnate symbol of “the pursuit of justice for the accused.” So I can point to at least one other criminal defense attorney who speaks my language.

  2. Well, I agree it would be better not to overcriminalize, which leads to people being punished for no good reason. But no, that’s just moving toward a more tolerable society. Respect for civil liberties and civil rights in practice, that would help too, and has nothing in general (though some things in particular) to do with overcriminalization.

    But a good society? How about one where the arts flourish, where the poor and sick and downtrodden are seen as our first concerns rather than after thoughts, where the “social safety net” is more important than the military or the investment bankers? How about one where we look at this planet and say that really the destruction of the ecosystem has got to stop? How about one where the lion will lie down with the lamb and the meek will inherit the earth and those who grasp for power, prestige, and preferment will be no longer?

    I can have my vision of Utopia, too.

    Sure, people view the freeing of demonstrably innocent folks as justice. But they don’t view fighting for the demonstrably guilty as pursuing justice. That’s where your language privatizes. And sure, you’re not the only one who thinks that criminal defense lawyers are engaged in a fight for justice, though I notice that your definition of it continues to mutate since fighting on behalf of the “murdering son of a bitch” (say that Manson guy you mentioned earlier) isn’t exactly, at least not in any clear way, a fight for a world without crime – unless you think the only actual crime is taxation (which I don’t think a crime at all, though I’m no fan of our tax structure or of exactly how the government chooses to apportion its revenue. (We’ve been down the road of linguistic malleability before; I remember when you argued that justice was due process and then backtracked from that.)

    You should probably, by the way and if you haven’t, take a look at what Raymond Koehler wrote in a guest post on his brother Jamison’s blog yesterday.

    • John Kindley says:

      It sounds like our visions of Utopia are quite similar, though I’m guessing we have different views on whether the State is the avenue or the roadblock to that vision. I think the need for a “social safety net” would be largely obviated by a just tax system, specifically the Georgist “single tax” (which incidentally Darrow also advocated, at least for a while, until Henry George ticked him off), and by the State desisting from all of the other economic obstacles it puts in the way of poor people, and that any residual need for a social safety net would be better met locally. But for what it’s worth, I too think the “social safety net” is more important than investment in the military or the investment bankers.

      I added to the post above a link to our last runaround on this subject, which answered somewhat your charge of linguistic malleability.

      I’ll be sure to read that guest post by Koehler.

    • John Kindley says:

      Holy cow! Scott Greenfield has stopped blogging??

  3. It’s not so much that government is either the avenue or the roadblock. It can be (and in practice and to a limited extent in the quotidian world where we live is) both.

    Your vision – especially the economic part – assumes that given their head people will mostly be cooperative and supportive, that they really will choose to comfort the afflicted even if it means some greater degree of discomfort for themselves, that somehow greed will be balanced (or perhaps prevented) by openness and generosity (or rebellion?), or maybe that we’ll live in an agrarian society where everyone will just agree that nobody owns anything – or that everyone has an equal share or right or something.

    That’s probably not being fair to you, but for those of us who share a basically Hobbesian view of the state of nature and human nature, the restraint government can provide on social misconduct through economic greed and manipulation and raw power – and the protections only it can provide and that nobody else is sufficiently willing or able to provide – are not marginal things.

    Here’s a question: Did autocracy and dictatorship develop because of governments or because some folks managed to amass power and harness it to their own advantage? In the Greece of supposedly pure democracy, Socrates was sentenced to die for complaining that the system was inherently corrupt. I’m no expert on cultural history or anthropology, but I do know that the myth of the Golden Age is a myth.

    You assume without evidence that the world would be better if government got out of the way. I’ve never seen any evidence of a better world, and every instance of which I’m aware that functions (perhaps that should be functioned) even moderately decently is Hobbesian (“solitary, poor, nasty, brutish, and short”) even if socially somewhat fair. I don’t see much way around that.

    • John Kindley says:

      “Did autocracy and dictatorship develop because of governments or because some folks managed to amass power and harness it to their own advantage?”

      States developed because some folks managed to amass power and harness it to their own advantage. There were slaves in the Greece of supposedly pure democracy. The origin of the State is in conquest and confiscation, and its purpose is the perpetuation of the exploitation of one class by another that that conquest makes possible. The American Revolution is not really an exception to that.

      I basically favor what I consider to be the essential ideal of the authentic Left — the distribution and dispersal and decentralization of power, both economic and political. Such a world, it seems to me, would be inherently safer and freer than the world in which we live. Of course, if such a dispersal and distribution of power were “achieved,” its preservation would depend on people being vigilant against groups evidencing an intent to amass power for the purposes of conquest. Paradoxically, I’m not opposed in principle to the idea of a one world “government,” so long as that “government” was nothing more than a confederation of balanced powers (to resolve differences between them), which powers were themselves confederations of balanced powers.

  4. Norm Pattis says:

    Sorry about the blogging platform. I get lots of complaints it aint user friendly, but, then again, neither am I.

  5. Norm Pattis says:


    I am not with the whole engagement thing. Hard to practice law and do that at the same time. I will talk to designer to see if there is something that can be done.


  6. What you’re really saying, as I understand it, is that your idea of a good society is one in which nobody is punished.


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