A letter to Hallei Lyan
Raisse is still concerned with the law, perhaps even more than she used to be now that she is in Essle.
To Hallei Lyan in Valdis
My learned friend,
I hope I find you in good health, it was only yesterday that I heard of the plague that came from Valdis to Turenay. The king sailed for Solay yesterday and I will return to Valdis as soon as I can. It will be at least a few weeks yet before I am back. Please pass this on to the palace.
I’ve had occasion to question myself and our rules lately. They have been accused of being primitive and arbitrary. I don’t feel that they are, however, even though they are not as complex as those of other countries. So I will set my thoughts in writing here as a way of distilling them into something coherent and in hope of some insight on your part.
On justice through law and judgment
The purpose of law and judgment should be to achieve justice. If that is not the case and they serve some individual or party, it should give that party advantages over others, as we have just given that as its purpose. People not of this party will then find it unfair, arbitrary and wrong and will not abide by it. So in order for law and judgment to be accepted and useful in general, it needs to serve a higher purpose. I can’t think of a more fitting purpose than justice.
Let’s start by trying to define what justice is. It is my firm belief that justice is divine. By that I mean that it is something we can strive for, but only the gods may fully achieve it. Even though we will never achieve perfect justice, it is exactly through striving for as much justice as we can achieve that we improve ourselves and the world around us.
We get justice when all people get what they deserve. That means that when someone does something that is wrong –something that is detrimental to the community in general– they should be punished. And the severity of that punishment should conform to the harm they did or would have done. Likewise, if someone does something good, something that is beneficial, they should be rewarded and the reward should be in proportion to the good they did.
Looking at how systems of law function, it seems to me that much more emphasis is given to punishing that which is wrong than to rewarding that which is right. I wonder now why that is, and whether rewards aren’t overlooked as a tool in systems of judgment. My guess it that is it simpler in that wrong is less open to interpretation. There is also the conventional wisdom that doing good is its own reward, and from personal experience I know that this is at least sometimes true. On the other hand, doing wrong, stealing money for example, is not its own punishment. In the short term there will even be a reward: the reward that was the reason to do wrong in the first place. There may be punishment, like becoming a social outcast and mixing with the wrong kind of people, but these are long-term, subtle and easy to overlook.
We get justice when things are fair. That is: when rewards and punishment for any act are the same in similar circumstances; when no one is harmed needlessly and everyone can carry on productively as much as possible; and any lack or surplus is distributed evenly over those it is intended for.
So when we strive for justice, the best we can do is to strive for maximum fairness and maximising giving people what they deserve. These should in my opinion be the fundamental precepts of a system of justice.
We as a community have two important tools to maximise justice. First, we have leaders on any level who use their sense of what is right and wrong to adjudicate matters. This sense of right and wrong is in part intrinsic, personal, and given to a soul by the gods, in part defined by the accepted norm of the culture we grow up in, and in part taught to us when we are raised by our parents or those who stand in for them. People using these gifts to find the best way to resolve a situation is what I call judgment.
The other tool is the law. The law is a collection of rules on what is wrong and on how wrong it is. Rules are clear, concrete and easy to use or change, making them very easy tools to grasp for. A good rule makes it easier to see that justice happens. A bad rule can get in the way of that. Rules can be communicated easily and standardised. And, very importantly, they are predictable and repeatable.
But there are a few downsides to rules. Rules are passive. They do nothing in and of themselves. They need to be interpreted, applied to the situation at hand by someone, because they cannot take the whole of the circumstances into account. Furthermore, they are written by someone who sees the situation only in the abstract, so with less knowledge than a person would use judging. The rules themselves have no sense of right or wrong.
So how do we best use these tools to get maximum justice? Given that rules are passive and need a person to apply them, a person needs to be involved. We also want people to know beforehand that they will be considered a criminal if they do something wrong. And we want the punishments to be similar all over the country and for people from every heritage. To achieve that we need rules. So we need both: the person to interpret the rules and check them against his sense of justice, and to take the circumstances into account and the rules to communicate what is wrong and how heavily it will be punished.
It is possible to create rules that try to limit the wrong that an ill-intentioned person can do, but from the previous paragraph and the fact that rules do nothing without interpretation this approach seems destined to fail. Such rules would also get in the way of well-intentioned people trying to achieve maximum justice.
So I have come to the conclusion that in order to get maximum justice the things to keep on doing are the following. First, put good and just people in positions of leadership where they pass judgment. Second, create rules to define and standardise what is fair and what is wrong.
It may be that the conclusion seems obvious, but I had to put a lot of thought into why that is and I think having underpinnings such as these are helpful in understanding law and standing up for what is right.