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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