How legal courts fail to administer justice.
Across the world, legal systems differ enormously — but not in every fundamental respect. Each country develops its own laws and standards concerning what people may and may not do, yet the concepts of guilt, innocence and responsibility recur across legal traditions.
Beneath these superficial differences lie deeper principles
that are often treated as self-evidently just. Two of the most important are
the idea that a person’s intentions can reduce their responsibility for an
outcome, and the idea that responsibility can extend beyond the person who
actually carried out a harmful act.
Taken separately, both principles may appear reasonable.
Intentions clearly tell us something about why people behave as they do.
Associations can also matter when crimes are planned collectively. But pushed
too far, these principles produce an eerie contradiction. One can reduce the
responsibility of someone who actually caused harm because of what was
happening inside their mind, while the other can extend responsibility to
someone who did not personally cause the harm at all.
In other words, legal systems can allow responsibility to
move in two seemingly opposite directions: away from the person who acted, and
towards the person who did not.
The result is a set of scales that can become imbalanced and
unjustified.
At one extreme, we may become increasingly willing to excuse
actions because we judge the intentions behind them sympathetically. At the
other, we may become willing to punish people for the actions, beliefs or
intentions of others. In both cases, responsibility begins to drift away from
the most concrete thing we have: what the individual actually did.
When Intentions Outweigh Outcomes
The first problem begins with the priority given to
intention. Modern criminal justice frequently distinguishes between acts
according to what a person “meant” to do. The same physical outcome can
therefore be judged very differently depending on the mental state attributed
to the person who caused it.
There is an understandable rationale behind this. We
instinctively distinguish between an accident and a deliberate act. Someone who
injures another person unintentionally appears different from someone who
deliberately attacks them. Intention therefore seems relevant to moral
judgment.
But there is a difficulty. Mens rea — broadly, the
requirement that certain offences involve a particular guilty mental state —
makes responsibility dependent on something that cannot be observed directly.
Actions and consequences exist in the observable world,
while intentions exist inside somebody’s mind. We can see what someone did. We
can often establish what happened as a consequence. But intention must be
inferred.
That inference may come from words, previous behaviour,
expert testimony, circumstances or the defendant’s own explanation. It may be
convincing. It may even be overwhelmingly persuasive. But it remains an attempt
to reconstruct an internal state.
This creates a peculiar feature of justice. The more heavily
responsibility depends on intention, the more a court moves away from judging
actions and toward interpreting minds.
The Lindsay Clancy, Raina Thaiday and Deirdre Morley cases serve as three prime examples of this broader problem. The point
of invoking such cases is not simply to argue about particular defendants, but
to raise a deeper philosophical question: if the physical act itself is
established, how far should explanations concerning the actor’s mental state
alter responsibility for its consequences?
At what point does understanding why somebody acted become a
mechanism for diminishing the importance of what they actually did? Once the
legal system places too much weight on internal states, the link between action
and responsibility weakens and, in some cases, disappears.
The Road to Hell is Paved with Good Intentions
The same problem becomes even clearer when we move beyond
individual criminal cases. Governments, institutions and militaries frequently
distinguish between intended and unintended consequences. Harmful outcomes may
be describedas accidents, unforeseen consequences or “collateral damage”.
Again, intention is being used to alter moral judgment. A
harmful outcome occurred, but the defence is, simply, that the harmful outcome
was not the intended objective.
There is an important difference between deliberately
seeking harm and causing harm while attempting to achieve “good”. But the
philosophical danger remains: if good or acceptable intentions are allowed to
outweigh consequences, any harmful action can acquire a moral escape route, of
sorts. The formula becomes troublingly simple: Bad outcome + good intention =
reduced responsibility. If intentions are sufficiently good enough,
responsibility falls to zero, and the wrongdoer is labelled “innocent”.
This is particularly significant when the person or
institution claiming good intentions is also the party responsible for the
harmful outcome.
Nobody describes themselves as “intentionally unjust”. Governments would never admit to intentionally oppressing innocent people. Institutions never say their objective was to cause more suffering. Individuals who cause harm always believe they had legitimate reasons for the harm they caused. If intention becomes the overriding measure of justice, then the phrase "I meant well" can become more powerful than the consequences produced by the act itself.
The Opposite Distortion
Another example of how court systems continually fail the
public is that modern systems of justice not only excuse the guilty; they also
punish the innocent.
Instead of allocating responsibility to only the person who committed
harmful actions, they expand responsibility toward people who didn’t commit the
harmful act. A person may become the subject of suspicion not because of
something they personally did, but because of what they thought/intended, who
or what they know, who they are “linked” to, what values they appear to share
or what cause they vocally support.
The danger begins when association substitutes for action. The central question then becomes remarkably simple: if I did not carry out the wrongful act, why should I bear responsibility for somebody else who did? If I was not in control of their body, why should I take responsibility for something I couldn’t control?
This produces the mirror image of the intention problem. In the first case, someone performs an action, but responsibility is weakened by looking beyond the action toward their internal mental state (intentions). In the second, someone does not perform the action, but responsibility is shared beyond the only actor toward other people who assisted/encouraged the perpetrator.
The two notions pull in opposite directions, yet produce the
same result: responsibility becomes detached from individual conduct and
injustice inevitably prevails.
When the Two Principles Meet
This is where the argument becomes most striking.
Imagine two people. The first causes physical harm with good
intentions; the legal inquiry then turns toward intention, mental state,
motivation or some other internal explanation that might reduce culpability. The
second person commits no actions but has devious intentions that encourage
others to do harm; the legal inquiry then expands outward to their
relationships, communications and associations and finds a basis for treating
them as responsible for what somebody else has done.
The paradox is difficult to ignore: the person who acted acquires less responsibility, while the person who didn't acquires more.
The deeper problem is that the very idea of individual
responsibility starts to lose its centre. Responsibility should ordinarily have
a natural anchor: the individual’s own choice of action. Once that anchor is
removed, responsibility becomes elastic. It can contract when we wish to excuse
somebody and expand when we wish to implicate somebody else. That flexibility
is particularly dangerous in the hands of the State.
The State's Monopoly on Force
Police and governments occupy a unique position because they
possess a monopoly on force in society. Ordinary citizens are expected to
submit to legal authority, while police are empowered to use coercion in
circumstances where civilians ordinarily cannot.
This creates an unavoidable imbalance. The state can
investigate, detain and arrest. It can interpret behaviour as threatening. It
can deem associations as suspicious. It can decide that a person’s communications
indicate dangerous intentions.
Meanwhile, ordinary people may become increasingly reluctant
to defend themselves because they know that the state will later judge not
merely what happened, but what authorities believe their intentions were. Police
may assume the worst intentions if a person is premeditatedly armed or appears
prepared to defend themselves.
A government powerful enough to determine both which thoughts
are legitimate and which intentions are acceptable possesses an excessive
amount of interpretive authority that can easily be twisted to serve nefarious
interests.
How a Tyrant Would Prefer It
Suppose you were designing a legal order for a tyrant. What
principles would be useful?
You would probably want responsibility to be flexible. You
would want the ability to punish people who had not personally committed an
offence, provided they could be linked to rebels, dissidents or prohibited
groups. You would want association itself to become evidence.
At the same time, you would want harmful actions committed
by authorities or favoured actors to be judged according to benevolent
intentions, necessity or claimed higher purposes. In other words, you would
want one legal rule for extending guilt and another for diminishing it.
Today’s court systems are exercising precisely these two
erroneous principles: arresting associates of righteous rebels while enabling bad
actors to invoke good intentions to escape justice.
Ultimately, today’s legal principles serve tyranny even when
they focus firmly on punishing thought (intention) rather than actions.
Responsibility Must Return to the Individual
The solution is to abolish all consideration of “mens rea”,
i.e. intention, as well as refusing to punish people for their thoughts, words
and intentions. People should only be held responsible for their own actions
only. Politicians should be trying to restore the individual as the primary
unit of responsibility instead of allowing them to remove or share it with
others.
Intentions may help explain conduct. Associations may
provide context. But neither should casually replace the individual’s own
actions as the foundation of guilt. This principle offers something both simple
and demanding. It prevents us from excusing serious actions merely because we
sympathise with the explanation given.
The Scales Are Reversed
The traditional image of justice is a set of scales. The
metaphor implies balance: evidence placed against evidence, responsibility
measured carefully, judgment restrained by principle.
If mens rea and related doctrines let intention overshadow outcomes, responsibility can be removed from the person who acted. If
collective responsibility and guilt by association are permitted,
responsibility can be imposed upon the person who didn’t do anything.
One doctrine looks so deeply inside the actor that the
action itself can begin to disappear. The other looks so far beyond the
individual that someone else’s actions become their burden. Both movements
weaken the same foundational principle. Justice should begin (and end) with the
individual -- not the group.
A just society should not need to read minds to decide who
deserves responsibility, nor trace associations to manufacture guilt where
personal action is absent. Before asking what someone intended, whom they knew
or what they believed, justice should begin with the most elementary question
of all: what did this individual actually do?
Written by George Tchetvertakov
