An Alternative to the Judicial System


This is specifically in response to a query posed by a member of the Occupation. The idea is to look for an alternative to the Anglo American Judicial system which has its roots in a secular version of Roman and Christian traditions. 

For the sake of this discussion it would be best to have a quick review of the roots of the current Anglo American system. Again I cite from my work in 2007[1].

Crime by definition, until the 1700s, was seen as a result of “evil” or a rebellion against God (or the Gods), or a rebellion against the cultural expression of the common good as personified in the codified expression of a given religious deity. Take your pick. This demonic perspective was overturned during the Age of Enlightenment. The work of Cesare Beccaria published in Italy in 1764 is the best known dissertation on what is now known as classical criminology.[2]
 
The essential ideas are quite simple. Individuals are rational beings who pursue their own interest, trying to maximize their pleasure and minimize their pain. And unless they are deterred by the threat of swift, certain, and appropriately severe punishment, they may commit crimes or harm others in their pursuit of self interest.[3] The objective of the enlightened classical approach is deterrence.

The current cultural dynamic within the popular dialogue is a mish-mash of the demonic perspective and the enlightened classical criminology. The resurgence of religion in the body politic, due largely to the efforts of the late Rev. Jerry Falwell, has altered the view of the mass of humanity. The phrase “rational” has been replaced, in all practical purposes, with the phrase “sinful.” Mind you, within the religious framework such concepts as justice, mercy, charity, and forgiveness are forgotten. When objections are raised to this neo-classical demonic perspective, the religious roots of the current philosophy are swiftly covered up.[4]
 
The primary change in today’s environment is due largely to the popular rejection of science and the scientific approach. From the late 1800s to the mid-1960s, science was the religion of the masses. However, as the culture moved forward, a perception emerged that human rational problem solving and scientific observation, and the policies created to address social challenges, were flawed. Science could not address the counter culture of the late 1960s, or the cultural chaos that arose from it. Some maintain that science, and rational thought, was the root cause of the of the counter culture movement. Moreover, science seemed to be supporting cultural chaos. Science gave us speed, LSD, PCB, crack, methamphetamine, and only God could counteract the effects of addiction. This led to the rise of “saved” sinners, and dried out drunks[5] who engaged the debate on law and punishment from a perspective that all people are criminals at heart, they are wicked, they are evil, and all deserve to suffer. Moreover, they maintain that people should suffer to purge their souls so they can have communion with God. 

The popular misconception of the counter culture is that the radicals of the era were not properly indoctrinated into the broader morals of the U.S. culture. This is a myth. The 20-ish rebels of the 1960s and 1970s grew up with some form of school prayer, and the mandatory Pledge of Allegiance. They sited by rote, “… one nation under God, indivisible, with liberty and justice for all.”[6] The cause of the counter culture of the 1960s was not in God being taken out of the schools, but in a deeper disturbance resulting from the Cold War. Do not misconstrue this as condemnation of individual faith or religious observance. Religion has been known to inspire greatness and great thought, however, when applied at the mass cultural level, responding to the lowest common denominator, great acts of charity as an expression of religion gets lost. 

From an individual religious perspective this is all fine and good; the addictive substance is replaced with a dependence on a spiritual being. However, it is a poor replacement for observable, scientific cause and effect. Moreover, as harsh as this may seem, the doctrine of popular Protestant Calvinistic Christianity tends to negate personal responsibility for one’s actions by placing all criminal and harmful actions “under the blood of Jesus.” The individual, once becoming a Christian, is not likely to address their own faults in depth, and can minimize any guilt response for the actions they commit (this process is called neutralization). This arrogance of perfection, goes so far as to say, in the words of a local pastor broadcast on KCLE out of Cleburne, Texas on July 4th some years ago, “Christians are sinless because of Jesus!”  

The situation in the 1700s has similarities to what we have today. Again quoting Criminological Theory: Past to Present by Francis T. Cullen and Robert Agnew:

Laws in the 1700s were frequently vague and open to interpretation. Judges, who held great power, would often interpret these laws to suite their own purposes. So punishment for a particular crime might vary widely, with some people receiving severe penalties and others not being punished at all. Poor people, who could not afford to bribe the judges, were at a special disadvantage. Further, the punishments for many crimes were quite harsh, often involving torture and death.[7]

So … what is different today?

Judges still interpret laws based on the perceived need of the society in a given era. Punishments are still at the discretion of the judges. While the blight of bribery has diminished somewhat in today’s legal system, it has been replaced by the need for expensive attorneys.

Having established the basis of our current system, it is sufficient to say that we need to revisit a system based on clearly understood principles of psychology, sociology, and criminology. First, coercion is detrimental, and is a primary cause of criminal behavior. Coercion includes official indifference to the welfare of others. This can be seen in Mark Colvin’s 2000 study in Crime and Coercion. Second, to achieve socially acceptable goals, people will use socially acceptable means only as long as the means allow them to achieve the goals. This is the thumbnail definition from Merton Work on Crime and Anomie (lawlessness). It is also referred to as Social Strain Theory.[8] People are motivated to achieve a solid social bond when other needs, primarily the fear of loss is quelled, and love and belonging is addressed.[9]
 
Most of what we see, and hear, in the popular approaches to Justice does not take these factors into account. Even within the Occupation there is a propensity to a simplistic view of action and reaction. This is essentially the One-Size-Fits-All approach applied by the oligarchy to the masses. It is the main reason that we have so many people (more than at any point in the history of our nation even when seen as a percentage of the total population) in under court control today. 

The following suggestions are loosely based on principals of the Talmud, the French Judicial system, Heinlein’s writings about Coventry, and an anthropological understanding of 12th Century Druidic tribal practices. It is at best a skeleton.

  • No who is accused of a crime is allowed to confess to that crime.
  • If a crime is not witnessed by three people it did not happen (witness can include evidence gathered through forensic science and investigation).
  • No crime has been committed unless it causes physical harm, or financial loss; uttering angry words do not constitute a criminal act.
  • The accused shall appear before a tribunal consisting of three people who have advanced training psychology, sociology, and related social sciences, and two other citizens drawn by lottery to aid in the commonsense of the situation.  
  • The goal of the tribunal is to discover what has occurred, then who is responsible for what occurred; the primary objective of the tribunal is truth, not winning or losing in a civilized variation of trial by combat.
  • Once truth is discovered, the tribunal shall give the accused a number of options to address the wayward behavior. One of which is his or her choice to leave the group for a determined amount of time. Other options can include therapy and/or restitution.
  • All proceedings in such matters are public, and can be attended by any member of the group at large. However, the process is not subject to the consensus process used in the General Assembly at large.
   
  


[1] Potts, C. A. (2008). Wealth, Women and War (pp. 62-65). Dallas, TX: WordTechs Press.
[2] Cullen, F., & Agnew, R. (2006). Criminological Theory: Past to Present (2nd ed.). New York: Roxbury Publishing Company, p 15.
[3] Cullen, F., & Agnew, R. (2006). Criminological Theory: Past to Present (2nd ed.). New York: Roxbury Publishing Company, p 15.
[4] largely due to the separation of church and state prescribed within the words of the First Amendment to the Constitution of the United States which states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …
[5] “Dry drunk, [or dried out drunk]” according to Wikipedia, “is a term used, often disparagingly, by members of Alcoholics Anonymous (AA) and by substance abuse counselors who subscribe to the AA theory of alcoholism to describe the recovering alcoholic who is no longer drinking but whose thought processes are considered to continue to be distorted by the thought patterns of addiction.”
[6] Pledge of Allegiance. (2008, June 18). In Wikipedia, The Free Encyclopedia. Retrieved 03:49, June 18, 2008, from http://en.wikipedia.org/w/index.php?title=Pledge_of_Allegiance&oldid=220049542
[7] Cullen, F., & Agnew, R. (2006). Criminological Theory: Past to Present (2nd ed.). New York: Roxbury Publishing Company.
[8] A Step Closer to Civil War? . (2011, December 4). In #Occupy: The Chicago Free Web Zone. Retrieved February 13, 2012, from http://occupythewhole.blogspot.com/2011/12/step-closer-to-civil-war.html
[9] Maslow's hierarchy of needs. (2012, February 9). In Wikipedia, The Free Encyclopedia. Retrieved 04:04, February 14, 2012, from http://en.wikipedia.org/w/index.php?title=Maslow%27s_hierarchy_of_needs&oldid=475962504

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