Literature and Justice #
We hang the petty thieves and appoint the great ones to public office. Aesop, Greek slave & fable author
Literature can enflame our determination to pursue justice. - Professor Susan Sage Heinzelman
Writers like Kafka, Camus support Hilary Mantel’scaution us that:
“much of jurisprudence is an elaborate bluff and legal language is cognate with magic”.
Matthew Arnold claimed:
“the study of literature gives you the best vantage point from which to understand an entire society”.
Marshall McLuhan maintained:
“the chances of understanding the meaning of our involvement in the present is very small. It is generally the artists who see what they are living in the present and are always one step ahead (of technology)”.
Great literature can give us a clearer perspective of our own narrow portals of life with all its small time complications. It helps us to see the big picture rather than our own narrow and limited experiences reveal; it helps us to transcend and globalise our concerns. It gives us a chance to learn from the giants of the past and can give us a cautionary warning about the direction our society is taking us.
Literature and Empathy #
Some literature is about empathy – learning what it is like to be another person, then writers should write as deeply and completely about characters who are real people but who are not themselves; They should create different characters so our imagination is expanded into understanding what’s it’s to be a character who is not you - especially the evil ones. By reading, we can see what we have in common with the “others” and find our central self. Everyone imagines themselves the hero of their own stories.
Trying to put you into the shoes of the main characters can be an immersive experience. In film “jacking in”, recording thrilling experiences through subjective camera angles, can replicate them in alluring immersive techniques so we can experience them vicariously.
Film can convey the lived experience behind the facts and figures that even a filmed documentary can not.
Yet, above all, the creative writer can stimulate your imagination so that you can visualise your own scenes.
Ian McEwan:
“It is hard to be cruel once you permit yourself to enter the mind of your victim. Imagining what it is like to be someone other than yourself is at the core of our humanity. It is the essence of compassion, and it is the beginning of morality.”
These apply to his fiction, imagining what it is like to be someone other than yourself. McEwan believes “in a particular broad sense the novel is a deeply moral form.
Some believe it was the introduction of the novel’s engagement with empathy that made us less savage and barbaric than previous generations. Medieval tortures, witch trials and inhumane lashes eased by the 1830’s.
Epic literature is just the opposite. It tries to disengage or alienate the reader emotionally from the action, situations and characters. By doing so it is trying to make us think objectively rather than feel subjectively. Epic heroes are too remote for us to empathise with so we stand back and judge them critically. They may be heroic in deed, but are morally ambiguous - Gilgamesh - a bully, Agamemnon - arrogant, Odysseus - hypocritical.
Poetry attempts to pierce facades and depict the essence of life. Poetry has a close association with Law. Early poets, Hesiod, Solon…. used the language of the gods and so were highly revered. However, poetry appears in decline. When a poet and a trader were both sentenced to death for similar crimes, the poet’s life was spared to appease the gods while the trader was executed. Today, the businessman would hire the best barrister and escape his crime while the poet would pay his penalty. And we call this progress.
According to Robert French, Chief Justice of NSW, judges often deploy poetry in harmless attempts of lifting the “quotidian” tedium of the judicial task but as one dismissive critic said:
Allusion(s), marginally relevant but of sound aesthetic provenance, lightly inserted but suggesting vast allusive reserves, certainly enhances the texture of judicial prose, and may even contribute in useful ways to sustaining a learned and authoritative judicial tone.
References to Homer, Virgil, Shakespeare, Kafka, Orwell, Camus…. all carry intellectual cachet.
The African-American author, Ralph Ellison, in the preface to his brilliant 1952 novel “The Invisible Man” , wrote the following about what he hoped his novel could accomplish:
…a raft of hope and perception … that might help keep us afloat as we tried to negotiate the snags and whirlpools that mark our nation’s vacillating course toward and away from the democratic ideal.
The Honourable Madame Justice Rosalie Silberman Abella writes:
I have always seen for law a mission analogous to the one Ellison offers for novels: a raft of hope and perception “… [to] keep us afloat as we … negotiate the snags … toward … the democratic ideal.”
Too often the Justice System does just the opposite; it takes us away from noble motives and the democratic ideal.
The Delivery of Justice #
Esteemed by some philosophers as the highest virtue, the delivery of justice demands and rivets attention. And the opposite is true as well: the perceived miscarriage of justice commands attention, sparking outrage and condemnation leading to diminished credibility, respect and confidence in what should be our most prestigious institution.
Justice is one of our most primal instincts (we are hard wired against an injustice) and our most fundamental cherished entitlement. Even as young children we have an instinctive sense of what is fair and just - right or wrong. We may not know anything about law, but we recognise an injustice immediately even if it does not concern us directly. A layman’s definition of justice may be nothing more than us getting what we deserve. Learned people have tried to define it more specifically for yonks.
Plato #
In his Republic, Plato defines his concept of goodness and Justice as the key virtue, both personally and politically. Plato’s view is deeper and larger than just rewards and punishments, rather rightness - but fundamental moral order. Hesiod and Solon had already demonstrated that societies are made by people, for people.
Force is not as powerful as an example or appeal to goodness. Fear makes people do what they are told, but inspiration motivates total commitment.
Goodness does not need the force of arms to destroy evil; evil destroys itself - Julius Caesar, Napoleon, Hitler, and many others give proof to that.
Justice in the end is always more profitable than injustice. Socrates, Jesus, Ghandi, Martin Luther King, and many others give proof to that.
Shakespeare on natural justice #
Shakespeare may suffered an obsessive compulsive condition as most of his plays depict abuse by pompous pretentions of vaunted powermongers. He appears to advocate for sound governance and justice.
Shakespeare’s King Lear has Albany with the final word on natural Justice:
“All friends shall taste / The wages of their virtue, and all foes/ The cup of their deservings.. V.3 276
Trust in Divine Justice is a foundation of most religions.
John Donne, in The Sunne Rising, cheekily claims their status as lovers equates to that of all royalty; an outrageous preposterous assertion. Donne perceives the hollowness of pretences of power, realising that all outward show is merely vanity.
King James I, the father of Charles I, was a Stuart who succeeded Elizabeth I in 1603, staunchly believing in the Absolute Power of Monarchs and the Divine Right of Kings. His delusional belief rested on the assumption that he equalled God.
Donne appears to mock this
All honour’s mimic, all wealth alchemy.
Thou, Sun, art half as happy as we,
In that the world’s contracted thus;
The fact is that despite the social contracts, real life is often experienced most fully at the level of ordinary existence rather than by vaunted authority.
The Bible: #
Perhaps the most consequential of books in Western Civilisation; it forms the basis of most of our values. It can of course be used to justify all manner of doings, both good and evil. It does provide us a foundation of virtuous metaphysical principles; tolerance, understanding, equity, altruism and acceptance.
“replenish the earth and subdue it”. Genesis 1:28 used by both environmentalists and exploitive developers.
“All his commandments are faithful: confirmed for ever and ever, made in truth and equity. .” Psalm 110.
“people united in one bond of peace”. Ephesians: 4:3
“Righteousness exalteth a nation”. Proverbs: 14:34
“God hath made of one blood for all nations of men to dwell on all the face of the earth”. Acts: 17:26
“And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter.” *Isaiah 59:14
A nation that faithfully follows the biblical creed should prosper.
Old Testament Justice, in the proscriptions of Leviticus is all about retribution “an eye for an eye”. They merely list a series of implacable injunctions against certain acts considered taboo, leaving no room for mitigation.
In one of the first Hebrew codes of laws, “Rabbi Shimon ben (son of) Gamliel asserts the three bedrock principles that underpin Western legal systems:
‘The world stands upon three things: upon Truth, Justice and Peace. Without these three elements the world cannot be sustained - and further, like the pillars holding up the ceiling of a house, all three are essential - together: There can be no Truth in the absence of Justice and Peace; no Justice in the absence of Truth and Peace; no Peace in the absence of Truth and Justice.
Rabbi Shimon benwas speaking out against the oppression of the Hebrews by the Roman Empire.
It was Jesus Christ who radically altered the way we see true justice in his Sermon on the Mount with antithetical but authoritative pronouncements:
“You have heard . . . but I say to you .. . “) Asserting in Matthew 5, that he came “not to abolish the law but to fulfill it”,
Jesus turned retalitory law on its head. You have heard that it was said to those of old, ‘You shall not murder; and whoever murders will be liable to judgment. but I say unto you But I say to you that everyone who is angry with his brother will be liable to judgment; whoever insults his brother will be liable to the council; and whoever says, ‘You fool!’ will be liable to the hell of fire. ([Matt 5:21 - 22])”
Mark Ward Jr. writes: Jesus is not counseling acceptance of injustice; to be a blessed “peacemaker” as he elsewhere in this sermon enjoins is to be an “active promoter” of peace. This is not quietism: protecting others from injustice is a Christian thing to do. But when someone hurts me individually, Jesus here and elsewhere in the sermon gives what you might call Don’t Stand Your Ground laws. “Don’t resist evil,” he says. And, famously, “Turn the other cheek.” Only someone with Christ’s authority could say such things to a crowd surely including some victims. Only someone who knows that he is about to bear the sins of the world could have told that crowd to leave vengeance in the hands of God.
As the apostlePaulwarns that oppressive power often resides in the very institutions meant to protect us:
For we do not wrestle against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places.’ Ephesians 6:12
Paul also advises:
“whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things.”
Cherie Harder, president of the Trinity Forum, says:
“Dwelling on fear and outrage is spiritually deforming. Both biblical wisdom and a large body of research holds that fear and grace, or fear and gratitude, are incompatible. Perfect love drives out fear.”
The Epic of Gilgamesh #
The Epic of Gilgamesh* is putatively the earliest form of literature extant. He was an historical king of Uruk in Babylonia, on the River Euphrates in today’s Iraq; he lived about 2700 B.C.
Discovered in the late 19^(th) C., The Epic of Gilgamesh is a narrative tale about the friendship between the King of Ur and Enkidu, a feral human raised in the wild. A priestess, the Goddess of Love, Shamhat, a sacred prostitute, is sent out to offer herself to Enkidu, the wild brutalised man, and they make love continuously for seven days. Enkidu is transformed by that experience, and becomes socialised, humanised and empathetic.
When Enkidu decides to marry, the two strong men fight over the “Prima Nocta” right of the King to sleep with Enkidu’s bride on her wedding night. When the fight ends in a draw, the two men, Gilgamesh and Enkidu become great friends and travel the world together.
It’s a kind of Anti-Garden of Eden story, where instead of sexuality being a fall, it’s an initiation into what it means to be human. It can also be seen as a demand for freedom from oppression of unlimited power and for equitable justice. It demonstrates that people relied on the gods to ensure the strong could be restrained.
Hammurabi on Justice: #
Around 1771, BCE, Hammurabi, one of the most successful kings of the Babylonian Empire, decreed a set of laws to every city-state in order to better govern his bourgeoning empire. Known today as the Code of Hammurabi, the 282 laws are one of the earliest and more complete written legal codes from ancient times mainly to regulate trade and debt-bondage.
Hammurabi’s Code was carved onto a massive, finger-shaped black stone stele (pillar) that was looted by invaders and finally rediscovered in 1901.
Hammurabi outlines his objectives:
When the god Marduk commanded me to provide just ways for the people of the land (in order to attain) appropriate behavior, I established truth and justice as the declaration of the land. I enhanced the well being of the people.
Most ancient civilizations, saw extensive use of debt among the people, so pervasive that it often involved debt-bondage and could accumulate to levels *“so crushing as to need periodic forgiveness – a ‘clean slate’ act.” *The fact that Hammurabi enacted debt relief measures four times in his 40-year reign suggests he saw himself as a shepherd, protecting the weak from the strong.
Greek Plays on Justice: #
Aeschylus was also poet, philosopher, soldier, and like the poet, Solon, a fighter for justice, but his genius lay in drama. As Solon was creator of democracy, Aeschylus was creator of tragic drama and he used his art form as a weapon for democracy, law, and the peaceful resolution of conflict. During his time political upheaval threatened to sweep away democratic justice.
Amidst that first crisis in 458 B.C., Aeschylus produced the Oresteia, the greatest tragic drama in human history.
It is a window into the evolution of Athenian justice, the principles underlying its law, and the threats to justice inherent in human passions. The play is a transcendental plea. For democratic justice.
The third part of the trilogy its final act portrays a courtroom trial in which the mental state of the defendant is central with all the elements of what today we call legal insanity. The Oresteia, immortalized and carried the message of justice through millennia. This powerful drama kept alive the idea of humanistic justice, through the eclipse of the Roman Empire and submersion in the Dark Ages, through the Renaissance when the classics resurfaced, to the British Isles, and to our courtrooms.
The Oresteia became the vital voice of Solon’s justice that enabled it to survive. Isaac Ray Corner, A history of justice: origins of law and psychiatry, Walter A. Bordenn,
Euripides’ Revenger’s Tragedy, Medea, first performed in 431 BCE, is every Family Court’s Judges’ worst nightmare. Medea, falls in love with Jason of the Argonauts, betrays her father, the King Aeetes of Colchis and kills her own brother, to help Jason claim the Golden Fleece, but is then abandoned in Corinth by Jason when King Crean offers Jason the throne if he marries his daughter Glauce. Medea, in vengeful spite manages to kill both Glauce and King Crean before resorting to filicide, killing their two sons, in retribution, before her flight to Athens.
Natural Law, the idea of a moral code integral to and inseparable from whatever it is that makes us human—is tested in the events of Medea when characters make decisions contrary to their nature, when Jason, a husband, abandons his wife or when Medea, a mother, murders her children. Medea’s decision to kill her children, even as a form of retribution, was as shocking to the ancient Athenians as it is to us today. It was then, as it is now, considered a violation of Natural Law.
In Herakles, the play’s titular hero, driven insane at the direction of the goddess Hera, slaughters his own family. In a crucial central scene, in which the personified figure of Madness (Lyssa in Greek) infects Herakles’s mind, Euripides’s language suggests that the sound of the aulos—heard no doubt in one of its more frenetic modes—conveyed her malign power.
“I will pipe over you with terror,” Lyssa says to Herakles, using a verb coined from the word aulos.
Sophocles in Antigone poses the conflict of Natural jurisprudence and State Justice. If the state acts in an unjust way, what is your role as a patriot? Accept or resist?
Following a dispute, her two brothers, having killed each other; the King Creon, decrees that her exiled brother Polynices, “an enemy of the state”, so his corpse is to be left outside on the hillside to be devoured by dogs and vultures. Antigone is determined to obey the divine laws by giving her brother Polynices a proper grave on the simple moral point that “he is still my brother”.
When her sister, Ismene resigns with:
“It’s the law, what can we do? we have to follow it - we’re girls,
Antigone asserts:
“but I will bury him: well for me to die in doing so. I shall rest, a loved one with him whom I have loved, sinless in my crime; for I owe a larger allegiance to the dead than to the living… But if thou wilt, be guilty of dishonouring laws which the gods have stablished in honour.”
When Creon charges her for breaking his law, she defiantly counters:
*Yes, for it was not Zeus who made that edict…nor deemed I that your decrees were of such force, that a mortal could override the unwritten unfailing statutes of heaven. …
Die I must… But if I am to die before my time, I count that a gain; for when any one lives, as I do, compassed about with evils, can there be any gain but in death?
So for me to meet this doom is trifling grief; but if I had suffered my mother’s son to lie in death a corpse unburied, that would have grieved me; for this, I am not grieved.*
And if my present deeds are foolish in your sight, perhaps a foolish judge arraigns my folly.
Other relevant Sophoclean Quotes:
“There is no greater evil than men’s failure to consult and to consider.”
“Oh it’s terrible when the one who does the judging judges things all wrong.”[Antigone]
Socrates: #
Socrates throws light on the nature of justice. Justice implies superior character and intelligence while injustice means deficiency in both respects. Therefore, just men are superior in character and intelligence and are more effective in action. As injustice implies ignorance, stupidity and badness, It cannot be superior in character and intelligence. A just man is wiser because he acknowledges the principle of limit. Unlimited self-assertion is not a source of strength for any group organized for common purpose, Unlimited desire and claims lead to conflicts. D.R. Bhandari J.N.V. University
Plato: #
Plato had already been perceptive enough to see Justice could be used as trickery. In The Republic, the character Thrasymachus argues that justice is the interest of the strong—merely a name for what the powerful or cunning ruler has imposed on the people. The rich and powerful make the laws to preserve their positions from the “little people”. Plato argued that justice is internal to the soul, requiring not laws, but discrimination and virtue.
Plato gives a prominent place to the idea of justice. Plato was highly dissatisfied with the prevailing degenerating conditions in Athens. The Athenian democracy was on the verge of ruin and was ultimately responsible for Socrates’s death. The amateur meddlesomeness and excessive individualism became main targets of Plato’s attack. This attack came in the form of the construction of an ideal society in which justice reigned supreme, since Plato believed justice to be the remedy for curing these evils. After criticizing the conventional theories of justice, Plato gives us his own theory of justice according to which, individually, justice is a ‘human virtue’ that makes a person self-consistent and good; socially, justice is a social consciousness that makes a society internally harmonious and good. “There are three classes of men; lovers of wisdom, lovers of honor, and lovers of gain.”
Plato contended that justice is the quality of soul, in virtue of which men set aside the irrational desire to taste every pleasure and to get a selfish satisfaction out of every object and accommodated themselves to the discharge of a single function for the general benefit.
Chaucer – The Canterbury Tales #
Chaucer exposes the evils of organised institutions of 14^(th) C. England by giving us an intimate view of a portrait gallery of characters. He is renowned for his wit and use of Chaucerian irony; praising a character, but undercutting it with subtle wit. Only one character survives Chaucer’s sarcasm unscathed – the lowly Parson.
All of the other Pilgrims prove to fall short of their projected image. The Church, the Aristocracy and the assumed pillars of the community are not spared his subtle but caustic condemnation.
The moments in the Canterbury Tales when “justice”, be it legal (in, say, The Wife of Bath’s Tale) or comic (in, say, The Miller’s Tale) is ultimately done: it’s clear that justice, in Chaucer’s world at least, is not always just.
The Sergeant of Law does not escape Chaucer’s sharp wit through malicious insinuations; his caricature is bourgeois, successful man of high standing, aggressive, scheming, punctilious, but venal, pretentious, shallow…. His greatest claim to fame is the ability to acquire entailed estates for himself.
His cultivated and projected image is a sham as exposed by subtle fulsome praise in the General Prologue and sustained by his own words in his tale.
He attempts to project an image of an erudite and learned professional, but this is undercut by his lack of culture through his banal comments revealing a charlatan.
Shakespeare’s Plays: #
Commentators have considered allusions to the contractual obligations of marriage in the comedies; to the legalities of property, authority, and succession in the histories; and to the fallibility of worldly judgment in the problem plays and tragedies. This last subject, critics note, has tended to summarize Shakespeare’s principal interest in human law as a flawed reflection of divine justice, which may only be redeemed when tempered with mercy.
Shakespeare’s histories and tragedies offer a more critical vision of worldly justice. The question of legitimate authority and legal succession lie at the heart of most of the histories, which tend to display brutal miscarriages of justice and bold abuses of law.
Shakespeare embodies the moral relativism of the Post-Modernists. One can never be sure whose side he is on. When Shylock denounces the Christians for their slave trading, he is giving back as good as he got for their abuse of his usury. Despite some leaning towards monarchy, the plays contain more than enough regicide and Bad Kings to satisfy the staunchest Republican. Where he does show his hand is his intolerance of pretence or affectation. He lampoons pomposity and is bigoted towards posturing and all forms of hypocrisy. He also leaves us in no doubt of his cynical attitude towards the failure of Justice.
In 1606, presents two contrasting plays about power; Macbeth about usurping Power and King Lear about relinquishing Power. Many other plays, especially Richard II and III, and Julius Caesar are clear examinations of the proper exercise of Power.
We live in a Post-Modern world of subjective values, no absolute truths and a pluralistic world of varied cultures, beliefs and values, “where we all dutifully believe six impossible things before breakfast”.
The Western world has accepted empirical knowledge, egalitarianism, feminism and tolerates wide, diverse forms of life styles. To someone from Shakespeare’s time this would appear chaotic, confusing and distressing.
The Merchant of Venice #
In 1594, the Queen’s Jewish physician was accused of trying to poison her and condemned to death. Did Shakespeare write The Merchant of Venice to reprove her?
Legal conflict frequently appears in the comedies, romances, and problem plays, often leading to formal or mock trials of thematic significance. The use and abuse of law also abounds in the histories, and emerges in the tragedies, where the transcendental forces of justice dictate the outcome of human disputes. Overall, the sheer weight and diversity of legal terminology in Shakespeare’s works has resulted in multiple lines of scholarly research on the topic.
The following speech by Portia is perhaps one of the most profound articulation of humanising Justice:
Portia
The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
‘Tis mightiest in the mightiest; it becomes
The thronèd monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptered sway.
It is enthronèd in the hearts of kings;
It is an attribute to God Himself;
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea,
Which, if thou follow, this strict court of Venice
Must needs give sentence ‘gainst the merchant there
Bassanio:
The world is still deceived with ornament.
In law, what plea so tainted and corrupt,
But, being seasoned with a gracious voice,
Obscures the show of evil? (3.2.80)
Measure for Measure #
As in Measure for Measure, among the problem plays, offers a legal framework and, according to John D. Eure (1975), expresses Shakespeare’s statement on the limitations and competence of law. Employing an abstruse edict that invokes the death penalty for fornication, Measure for Measure dramatizes the folly of legal systems that seek to adjudicate human imperfections.
Daniel Kornstein explains in his book Kill All the Lawyers: Shakespeare’s Legal Appeal:
Measure for Measure is an ideal play for lawyers. It quivers with legal immediacy and raises fundamental questions of law and morality. Legal themes permeate the play and rivet the attention of both lawyers and nonlawyers alike. “Good counselors lack no / clients” one character announces in the first act (1.2.198-99), and we know near the start that we are watching a play about law (Kornstein, 35).
Duke Vincentio
We have strict statutes and most biting laws.
The needful bits and curbs to headstrong weeds,
Which for this nineteen years we have let slip;
Even like an o’ergrown lion in a cave,
That goes not out to prey. (1.3.21)
Angelo to Escalus
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror. (2.1.1)
Angelo to Escalus
The jury, passing on the prisoner’s life,
May in the sworn twelve have a thief or two
Guiltier than him they try. ….. You may not so extenuate his offence
For I have had such faults; but rather tell me,
When I, that censure him, do so offend,
Let mine own judgment pattern out my death,
And nothing come in partial. Sir, he must die. (2.1.19),
Isabella:
O just but severe law! (2.2.56)
Angelo to Isabella:
The law hath not been dead, though it hath slept. (2.2.112)
Angelo to Isabella:
You seem’d of late to make the law a tyrant. (2.4.123)
King Lear #
Only after he has lost his power, does King Lear see reality for what it is.
In Act 2, Scene 4 Lear calls upon heaven in most pitiful manner:
LEAR
[…] O heavens!
If you do love old men, if your sweet sway
Show obedience, if you yourselves are old,
Make it your cause. Send down, and take my part!”
Kent:
Then ’tis like the breath of an unfee’d lawyer; you
gave me nothing for’t.
Lear abdicates his throne and loses his kingdom by the conspiracies of his daughters Goneril and Regan supported by Edmund. At Dover, Edmund-led English troops defeat Cordelia-led French troops and Cordelia and Lear are imprisoned. Cordelia is executed in the prison and Lear dies out of the grief of his daughter’s death. Despite all the suffering that good undergoes, evil is punished. Goneril poisons her sister Regan due to jealousy over Edmund. Later, she kills herself when her disloyalty is exposed to Albany.
In a climactic scene Edgar kills Edmund in Act 5, Scene 3 and says:
EDGAR
My name is Edgar, and thy father’s son.
The gods are just, and of our pleasant vices
Make instruments to plague us.
The dark and vicious place where thee he got
Cost him his eyes.”
“the gods are Just” because they punish the evil for their evil actions.
Fool expresses some profound truths:
Help, master, help! here’s a fish hangs in the net,
like a poor man’s right in the law. (1.4.122)
In his Perceptions on Justice speech: 4.6. 150 – 175, Lear reflects on how earthily justice sides with power and money.
> ”Plate sin with gold,
And the strong lance of justice hurtless breaks;
Arm it in rags, a pygmy’s straw does pierce it.”
Bob Dylan says much the same in his protest song, The Lonesome Death of Hattie Carroll.
In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ’em
And that the ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin’ that way without warnin’
And he spoke through his cloak, most deep and distinguished And handed out strongly, for penalty and repentance
William Zanzinger with a six-month sentence
Oh, but you who philosophize disgrace and criticize all fears
Bury the rag deep in your face
For now’s the time for your tears
Songwriters: B. Dylan
Jonathan Swift, quoting Solon, agreed: “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through”.
At first, if you want true Justice it can only come from the Gods:
Albany
“This shows you are above,
You justicers, that these our nether crimes
So speedily can venge!“ IV. 3. 78 – 80.
However by the end Albany realises we have to create our own justice with his final words on natural Justice:
“All friends shall taste The wages of their virtue, and all foes The cup of their deservings.. V.3 276
Henry VI, Part II #
When Shakespeare wrote; ‘‘Let’s kill all the lawyers,’’ it was the corrupt, unethical lawyers he was referring to. ‘‘The first thing we do, let’s kill all the lawyers,’ stated by Dick the Butcher in, Act IV, Scene II, Line 73. Dick the Butcher was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. Shakespeare was supporting attorneys and judges who instill justice in society.
Romeo and Juliet #
MERCUTIO suggests Queen Mab’s effects on various people:
O’er lawyers’ fingers, who straight dream on fees;
Macbeth #
In the Porter scene, Shakespeare is mocking many professions and here he could be ridiculing Lawyers or more likely clandestine Catholic priests masquerading as pedlars:
Faith, here’s an equivocator, that could
swear in both the scales against either scale;
who committed treason enough for God’s sake,
yet could not equivocate to heaven: O, come
in, equivocator. (Act II. Sc.2)
Shakespeare is well aware how adept lawyers can be with linguistic tricks, eristic reasoning to win arguments:
O! some authority how to proceed;
Some tricks, some quillets,
how to cheat the devil. Love’s Labour’s Lost, 1598
In this exchange between Lady MACDUFF and her son, who are about to be killed by henchmen of Macbeth, Shakespeareraises the whole question of the conflict between the forces of good and evil:
LADY MACDUFF
Every one that does so is a traitor, and must be hanged.
Son:
And must they all be hanged that swear and lie?
LADY MACDUFF:
Every one.
Son:
Who must hang them?
LADY MACDUFF:
Why, the honest men.
Son:
Then the liars and swearers are fools , for there are liars and swearers enow to beat the honest men and hang up them.
It is evident, Lady Macduff has no answer for her son, but we can assume that she acknowledges the fact that evil forces often outnumber the good in the “earthly” world as her next observation demonstrates:
LADY MACDUFF
I have done no harm. But I remember now
I am in this earthly world; where to do harm
Is often laudable, to do good sometime
Accounted dangerous folly:
In past times, solitary evil forces were defeated by the combined strength of good, however, the rise of corporations and institutions have allowed evil forces to unite.
Hamlet: #
Hamlet’s predicament is a universal one; as Marcellus states, “Something is rotten in the State of Denmark” and Hamlet’s reflection, “O cursed spite that I was born to set it right” forms the basis of this play.
When he contemplates suicide, Hamlet itemises his Reasons for despair:
That makes calamity of so long life;
For who would bear the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns That patient merit of the unworthy takes, …
Later in the Grave scene, Hamlet picks up a skull:
Why, may not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks?
The concept of poetic justice originated in the 17^(th) century requiring that vice be punished and virtue rewarded, and also that logic triumph over whim or caprice. This is also the origin of the anonymous declaration used in court oaths: “The truth, the whole truth and nothing but the truth”.
Novels evolved into a genre that raised people’s awareness of structural and sytematic problems of Justice by evoking empathy with its main characters. Jane Austen’s subtle satire veils the injustice of the inheritance laws which can leave women destitute due to male primogenture.
As early as the 17(th) century, John Locke questioned the ruin caused by primogeniture, which protected estates from being divided among heirs at the cost of leaving the offspring who did not inherit utterly destitute.
Other novels assisted in exposing gross injustices in society.
Dickens and the legal System #
Dickens started his working career in a legal office where he became grounded in legal language and procedures. Most of his novels illustrate the inadequacies of the legal system in helping the poor, who need to resort to their own wits to survive on the streets often putting them in harm’s way. Bleak House is his great novel of the law and it tortuous machinations.
The stock plot device of the impoverished orphan child, a representative victim of such a Victorian legal institution as the Poor Laws who is morally saved when elevated into gentility by a secret inheritance, sustains the plots of Oliver Twist and later Great Expectations.
URI: [http://hdl.handle.net/2123/409]
Dickens was a writer of Social Reform. Society is fundamentally flawed - In the novels written during the 1850s Dickens came increasingly to associate everything he found amiss in the world about him with the concentration of power in the moneyed middle class.
Institutions which had traditionally existed to safeguard the general welfare seemed to him to have passed into the hands of vested interests, committed to perpetuating rather than reforming existing evils. Society in its institutionalised aspect has replaced the individual malefactors of the earlier novels as the true villain. It was the institutions of society that were corrupt and self-serving. Some of the greatest legal reforms occurred in England from the 1850’s.
Paola Totaro writes that Dicken’s fiction was imbued with a potent social conscience and astute observation of the grave injustices ingrained in English society.
The Poor Laws were aimed to reduce the cost of relief to society and remove poverty from the streets. The poor were forced to live in workhouses when they needed a place to live.
It is my contention that Marx and Engels were instrumental in sending a shiver up the spine of the capitalists. Marx overlooked the shrewdness of the Capitalist rulers. When confronted by loss of power they adapted, compromised and made concessions. Far sighted Statesmen in the 19th century (Bismarck, Talleyrand) introduced socialistic programs to alleviate class discontent such unemployment benefits, old age pensions, accident insurance. With the rise of unions and negotiated contracts, the proletariat’s conditions improved and the need for revolution disappeared. Today most proletariat (working class) people have middle class lifestyles and been appeased.
Charles Dickensobserved in 1852: “The one great principle of English law is to make business for itself.” i.e. trial lawyers.
Judge Rothwax:
‘ … we have a system that is run entirely by lawyers for their own interests and for their own benefit.’
Yale law professor Fred Rodell:
‘The legal trade is nothing but a high class racket.’ Apart from everything else, the rules for concealing evidence enable lawyers and judges to engage in endless technical discussion on whether evidence can be admitted.
Bleak House is another great novel of the law and it tortuous machinations.
Like Plato and Shakespeare, Dickens demonstrates how the legal system favours the rich and famous rather than universal good or society’s losers through no fault of their own.
We see the role of poetic justice in the character of the cruel “Mr. Bumble” in charge of the orphanage and other charitable institutions in the town. He is a sadist and enjoys excessive torturing of the poor orphans. He marries “Mrs. Corney” for money and become master of her workhouse. Here his fate takes a twist as he lost his post as a beadle and his new wife does not allow him to become a master of her workhouse.
She beats him and humiliates him as he himself had done to the poor orphans. Right at the end of the novel, we come to know that both Mr. and Mrs. Bumble end up being so poor that they live in the same workhouse that they once owned.
Dickens was not the first to say: “The law is an ass”;
In Oliver Twist**, a court prosecutor says that
“...the law supposes that your wife acts under your direction”,
Mr Bumble replies:
If the law supposes that, the law is an ass — an idiot. If that’s the eye of the law, the law’s a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.
In fact, the law is an ass’ is from a play published by the English dramatist George Chapman in 1654 - Revenge for Honour:
Ere he shall lose an eye for such a trifle… For doing deeds of nature! I’m ashamed. The law is such an ass.
There is even evidence that it had been written by around 1620.
Bleak House #
Bleak House illustrates how a legal system of Victorian England ruins lives. In Jarndyce v Jarndyce, the case went for so long that legal costs devoured the estate in question, rendering any verdict redundant.
The slow-moving, corrupt legal system undermines social welfare, sends people to early graves, and fails to address injustice effectively. Lack of humanity in the court system, where lawyers feast on a pot of gold, leaving nothing left for litigants. Private citizens are more humane than the courts. The legal industry is set up to deny Justice.
Political and Social Justice in Frankenstein #
Mary Shelley’s father, William Goldwin, was an early advocate of more liberal ideas popularised by the ideals of the French Revolution (he and his wife Mary Wollstonecraft were called the ‘English Jacobins’). His major contribution was towards a more rational society especially as applied to Political Justice. It is not surprising that the young Mary would include varied instances of injustice in her first novel.
There was a sense of justice in my father’s upright mind, which rendered it necessary that he should approve highly to love strongly.
- Justine’s false arrest and execution for a crime she did not commit
all judges had rather that ten innocent should suffer, than that one guilty should escape. (132)
The saying has its origin from Genesis 18: 23 – 32:
Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?
… What if ten are found there?”
He [The Lord] said, “I will not destroy it for the ten’s sake.”*
Enlightened judges, Sir John Fortescue and later Benjamin Franklin based justice on this premise as well, however more authoritarian leaders such as the Salem witch trials Judges, Bismarck, Stalin and Pol Pot took the opposing view that:
“it is better that ten innocent men suffer than one guilty man escape;”
Lewis Carroll - Alice In Wonderland #
Some court systems take us down a rabbit hole to that other surreal Tea Party hosted by the Mad Hatter, where Humpty Dumpty patronisingly explains to Alice, a stubborn voice of reason, that the meaning of a word is simply determined by “who is to be master -, that is all”, following not Descartes’ “I think, therefore I am,” but Darwin’s “survival of the fittest. Where might is right”
Later Alice also learns from the White Queen, that with more effort and practice in these post-ironical, post - modern and post cynical times, “we can all be expected to dutifully believe six impossible things before breakfast”. As things become curiouser and curiouser, Alice yearns for “something to make sense” but finally concludes that “This is just a house of cards”.
The question remains, who are the jokers?
George Orwell - 1984 #
Alice could identify with Winston Smith
“He remembered remembering contrary things, but those were false memories, products of self –deception. Only surrender and everything else followed. It was like swimming against a current that swept you backward however hard you struggled and then suddenly deciding to turn around and go with the current”.
“It needed also a sort of athleticism of mind, an ability at one moment to make the most delicate use of logic and at the next to be unconscious of the crudest logical errors. Stupidity was as necessary as intelligence, and as difficult to attain.”
“If thought corrupts language, language can also corrupt thought.”
The elite political class will always do its best to damage radical collective hope. 1984 demonstrates how good can be turned against itself; writing against writing, thinking against thinking, love against love.
Orwell believed hope resides incipiently in the Proles. Winston does not give up on them while Orwell did not give up on the British common people.
In a note to the American editions he writes to the citizens: ”Don’t let it happen. It depends on you”.
Freedom is the dusk before the night.
If you want a picture of the future, imagine a boot stamping on a human face—for ever.’
Franz Kafka - The Trial - of Joseph K #
Perhaps the most frightening warning about the tyrannical power of the law comes from Franz Kafka:
Kafka’s 1924 novel, illustrates the banality of terror through the abuse of power and gave us the word “kafkaesque” to describe similar situations of powerlessness in today’s both totalitarian and democratic world.
The main character, Joseph K. struggles futilely against a secretive and tyrannical court system, only to be abruptly executed at the end with a knife to the heart.
Joseph K manages to arouse the court’s anger by complaining about the absurdity of the proceedings and the accusation itself, if he could only understand them.
The novel exposes the absurdity of life under an unaccountable power system out of control.
According to Richard Flanagan, Kaftka arguably the greatest German writer of the 20th century was, of course, Czech. His tales of alienation, of guilt, of not being what you seem, could perhaps only have been written by a German-speaking Jew who grew up in a Catholic Slavic city like Prague. But what that makes Kafka – German, Jewish, Czech, Slavic – is perhaps not the point. He is a writer being true to the multitudes within himself that are one and many.
Arthur Miller – The Crucible #
Evil is not only sanctioned by the court, it can be perpetrated by it. Miller depicts the Judges — Hawthorne, Danforth — Outsiders who carry a lot of power as absolutely confident in their unmistakeable judgements.
They are the gate-keepers who decide who lives and dies. Arrogant and highhanded, they refuse to entertain evidence contrary to their mindset. At the end their only twisted defence is that they “cannot turn back as twelve have already been hanged”. “The perverse logic; the only satanism is the satanic majesty of the state”. Peter Craven
Despite their claims of seeing through lies and recognising only truth, they are truly evil because of their blind arrogance and wilful ignorance.
The final irony is that the court — set up to restore and maintain order, merely creates mayhem, chaos or anarchy. At the end of the play, cows are wandering the roads and orphans are roaming the streets.
JOSEPH HELLER, Catch-22 #
Hierarchical Justice is prominent in military mind sets. On an R and R visit to Rome during the war, a soldier asks, “What can the authorities do to us?”
The reply is: “They can do anything we can’t stop them from doing”.
Bureaucracies have become so commonplace and ingrained that we seldom question their purpose and authority, yet, according to anthropologist and anarchist, David Graeber, they inform every aspect of our existence – “bureaucracy has become the water in which we swim”.
According to Dom Amerena in Spectrum, the best artistic satires occur in Kafka’s The Trial and in Heller’s Catch-22. According to Graeber, bureaucracies derive their power from the veiled threat of state sanctioned violence against non-compliance or even criticism.
Principles #
As always occurred when he quarreled over principles in which he believed passionately, he would end up gasping furiously for air and blinking back bitter tears of conviction. There were many principles in which Clevinger believed passionately. He was crazy.”
“Mankind is resilient: the atrocities that horrified us a week ago become acceptable tomorrow.”
“You know, that might be the answer – to act boastfully about something we ought to be ashamed of. That’s a trick that never seems to fail.” –Colonel Korn
“Major Major had lied, and it was good. He was not really surprised that it was good, for he had observed that people who did lie were, on the whole, more resourceful and ambitious and successful than people who did not lie.” …….
Casuistry #
The chaplain is an Anabaptist – they don’t believe in war.
“The chaplain had mastered, in a moment of divine intuition, the handy technique of protective rationalization, and he was exhilarated by his discovery. It was miraculous. It was almost no trick at all, he saw, to turn vice into virtue and slander into truth, impotence into abstinence, arrogance into humility, plunder into philanthropy, thievery into honor, blasphemy into wisdom, brutality into patriotism, and sadism into justice. Anybody could do it; it required no brains at all. It merely required no character.”
Justice is a knee in the gut from the floor on the chin at night sneaky with a knife brought up down on the magazine of a battleship sandbagged underhanded in the dark without a word of warning. Garrotting. That’s what justice is.
To Kill a Mockingbird, Harper Lee #
There is no greater hero that Atticus Finch and no greater siblings than Scout and Jem.
We all need that one novel that makes us feel heroic
It’s hard to keep one’s moral compass in a world where morals are bent all the time and doing the right thing sounds great on paper but rarely happens in real life.
Reading To Kill a Mockingbird will set you straight in lightning speed. You’ll gather some courage and wish you WERE Atticus Finch. His address to the court is one of the most inspiring examples of Natural Justice.
We all need that one novel that makes us feel heroic. We all need the novel that inspires us to be better and do better and the one that lifts us out of a trough when we’re feeling pathetic and your confidence is less than zero. Ruth Ostrow
Atticus advises Scout that “You never really understand a person until you consider things from his point of view… Until you climb inside of his skin and walk around in it.”
When Scout finally meets the bogey man, “Boo”, next door she says: “Atticus, he was real nice.”
He replies: “Most people are, Scout, when you finally see them.”
Camus, The Outsider: #
Albert Camus in The Outsider (The Stranger) has an Algerian man, Meursault, on trial for murder - he killed an Arab for the simple reason it was hot. At his trial, his mistress, Marie, is bullied during the cross-examination into giving the opposite evidence she intended. The evidence against him is compounded by the fact that he failed to cry at his own mother’s funeral. Meursault feels that because his lawyer advises him not to speak in his own defence, he is not really involved in his own trial and feels totally disconnected or alienated from it and life in general.
According to Richard Flanagan, he learned the danger of telling the truth, which leads to the execution of Meursault. For I had learnt the imperative of lies.
“All I can say,” Camus wrote in his great novel, The Plague, “is that on this earth there are pestilences and there are victims – and as far as possible one must refuse to be on the side of the pestilence.”
For Camus, resistance was the heroism of goodness and kindness. “It may seem a ridiculous idea,” he writes, “but the only way to fight the plague is with decency.”
Camus understood moments such as Australia is now passing through with asylum seekers not as wars that might be won, but aspects of human nature that we forget or ignore at our peril.
“The plague bacillus,” Camus writes, “never dies or vanishes entirely … it waits patiently in bedrooms, cellars, trunks, handkerchiefs and old papers, and … the day will come when, for the instruction or misfortune of mankind, the plague will rouse its rats and send them to die in some well-contented city.”
“ The misery and greatness of this world: it offers no truths, but only objects for love,” Camus wrote in his journal. “Absurdity is king, but love saves us from it.”
Michael Ondaatje’s In the Skin of a Lion, #
claims “He who controls the narrative controls history”
Much of our perceptions of the Legal Judicial world is derived from court room dramas, which may give us a distorted view of reality. Perhaps the most damaging influence has been the visceral approach of Judge Judy.
Literature can raise people’s awareness of social injustice and become a catalyst for change. Until the 1980’s police corruption was endemic in the eastern states of Australia. Dramatists and TV productions had some influence in promoting reform. David Williamson’s The Removalists (1971) raised the issue of widespread Police abuse of power and authority through brutal violence as did a television series The Scales of Justice, highlighting the issues of casual corruption in the Police Service. ABC Television exposed widespread corruption in various documentaries. These created a climate for public discussion, illustrating that literature can be an effective force for changing attitudes.
Honest police officers were a rarity in those days as one comedian quipped:
They found another honest policeman the other day.
What does he look like?
We don’t know; we haven’t dragged him out of the river yet.
Justice is an ideal well worth preserving; as the hoary chestnut goes: “the price of freedom is eternal vigilance”.
Justice and Tyranny #
Richard Flanagan claims that humour is the justice that the law never is.
“The road to tyranny is paved with pebbles of silence, fear of others, division, lies, national myths of imaginary threats, and the coarsening of rhetoric.”
Aldous Huxley cautions us:
“The thin and precarious crust of decency is all that separates any civilization, however impressive, from the hell of anarchy or systematic tyranny which lie in wait beneath the surface.”
The search for happiness and the belief that man is a freedom-loving animal is a delusion.
Rather, John Gray says:
it’s tyranny we often seek – with rather more zeal than we like to imagine. Tyranny offers relief from the burden of sanity and a licence to enact forbidden impulses of hatred’.
Benjamin Franklin: When we fear the government, we have tyranny; when the government fears us, we have liberty - a free democracy.