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Lectures to the Chinese by Alfred De Grazia

PART TWO:  The Eight Goods

6. Dispensing Justice

Before meeting you, I read the Chinese Constitution of September 20, 1954. I like it. It sounds better than the /constitution of the United States of America. Or it would if my ears were not attuned to American sounds. It provides so many right to the people! It has so many representative congresses of the people, all the way from the commune to the supreme Congress! It even protects the small farmer, granting him his bit of land, and the craftsman, granting him his tools.

The Chinese government is unitary and centralized, unlike the American, which is federal and divided neatly into three branches. I doubt that your courts are independent of politics. They probably respond promptly to the wishes of the communist leaders. I doubt, too, that justice is so slow and expensive in China as in America. But rather than speculate upon what your Constitution may mean and what it actually provides, I should tell you without delay about what passes for justice in America.


The most striking feature of Americans justice, to my mind, is the independence of the judiciary. It is easier, to find fairminded men than independent ones. But judicial independence was deliberate from the beginning of the nation. The thought of a king imposing his wishes upon a court was abhorrent. Remember that it was the commercial middle class and the independent farmers who dominated the early American governments, and whatever else you might say about them (and Marx had plenty to say), they were interested in forcing fairness upon court decisions through independence. You cannot have a flourishing commerce without a fair court. You cannot have security for your property without a fair court. You cannot fight off aristocratic privilege or a corrupt official without a fair court.

So the American revolutionaries and constitutionalists saw to it that the courts were independent from legislatures and officialdom. And their descendants, coming from all over the world, have agreed with them. The extent to which a defendant, in a civil or criminal action before an American court, can dominate the scene presents sometimes most astonishing sights. In effect, the independence of the judiciary in America means that any citizen, offended by any official, may insist that his way of reading the Constitution is the right way, and go before the courts to persuade them of his view. If you will forgive the comparison, can you imagine a lama from Tibet finding his way to the courts of Peking and getting from the court an injunction forbidding the Peking authorities and the People's Army from destroying the organization and seizing the property of Buddhist monasteries?

The highest court, the United States Supreme Court, interprets the Constitution and, logically, all state constitutions and all executive and legislative actions related to the Constitution, if you can also imagine that! It has nine members, and a majority carries on a case. They are appointed, not elected, and appointed by the President with the approval of a majority of the senators, two of whom come from each of the fifty state. As you might expect, President and senators and party politicians have done their best to see to it that men of their views have been appointed to the court. But once appointed, and appointed for life, these judges have found every kind of legal, constitutional, historical, and philosophical justification for acting in accord with their independent judgment.

As a result, it takes some skill in statistics to show that appointees have a tendency in x number of cases to follow the presumed ideological reasoning of those who brought about their appointment. There was a Justice Black, for example who had been a member of the KKK, a racist and illegal group, and who once appointed to the Supreme Court, delivered one decision after another in favor of the extension of liberties and protections to minority groups.

The whole national or federal system of courts is formed and proceeds along the same lines as the Supreme Court, and is as exuberant for independence on a lower level as the Supreme Court is at a higher level. From that it is not difficult to conclude that judicial independence is not only a constitutional format in America but is deep conviction and privilege that anyone aspiring to the judiciary holds in his heart.

The state courts consist of a system parallel of that of the federal courts, and they stand in a superior relation to a network of lower courts, ending up in the municipal and country courts of the nation, whose justices have often been politicians earlier on. These lower courts, which of course handle the great majority of cases in contest between citizens and between companies, do not have as high a reputation as the courts that I have already mentioned. Not a month goes by but that some judge somewhere in the country is caught in the act of accepting a bribe or judging a case unfairly to help out a political patron or friend. An unusual affair occurred recently when, apparently in an effort to prejudice the federal judge on a case involving Daniel Ellsberg, accused of having publicized state secrets, an aide of President Nixon's inquired as to the judge's interest in a still higher position.

However, I would point out, the type of crime these judges commit is almost always of a venal character, having to do with money. In some parts of the country they commit crimes of judgment that have to do with racial prejudice, but that has been declining in frequency over the past few years. Sometimes they have peculiar or old-fashioned notions of morality. Now and then they take a dangerous political position, which, on appeal, is usually revoked by the higher courts.

We have had much experience in America with elective judge. Many of these lower-court judges, and even statecourt judges, are elected. I am not sure whether election or appointment has anything to do with whether they are corrupt or not, or even whether they are better judges or not. In fact, the whole problem of the method of filling the judicial posts of the country is puzzling. To refer to the Supreme Court, here is a judicial organ that has enormous power: the right to define the Constitution is the right to state the rules under which the government operates, the rules on the limits of the government, and the rules on the restraints that are imposed upon government, and people. And yet this court is appointive. It is not directly accountable to the people. Where, then, is the bad effect that I have said comes from the failure to apply the representative principle throughout the institutions of society?

All I can offer in defense of the appointive court is that a judge generally is handed a case; he does not choose it; therefore he has limited legislative power. Moreover, the judges are appointed by elected leaders; therefore they can be presumed to be indirectly representative of the state of opinion for the early years of their tenure. Thirdly the judges are watched by the free organs of opinion, principally the press; therefore they are constantly prodded to be independent and fair. Furthermore, the function of being a judge is one that in America at least requires a studious preparation akin to that of the ancient legalists of China. There may be a lot of nonsense and "gobbledygook," as we would say, in the lawbooks, but not anyone from off the streets can handle the rituals and language as they have come to be handled. Elections generally might not provide persons educated to this technique.

Moreover, in America, the use of juries is common for determining questions of the actual facts of a case or the honesty of the parties and their witnesses. These juries are selected in a way roughly representing the character of the population. Although they are influenced by the judge and the prosecutors, they do constitute a populist check upon the appointive judiciary.

So I would conclude that the major problem of obtaining justice in America are not the product of the manner of selection of judges. Constant vigilance and, here and there in the country, some reforms in the manner of their choice are laudable. But still, this is not the heart of the problems of injustice in America.


What then are problems of injustice in America? What prevents dikaia, the rule of law? They are many. I shall try to limit them to "six plagues of injustice,' and suggest some of the ways that Americans have thought to improve the system.

The first plague is hardly the fault of the legal system. It is that the great majority of injustices in society are not indictable offenses. Mistreatment of other people out of hostility, aggressiveness, and contempt is an offense, and may take such virulent form, as in racism or hatred of foreigners, as to be a threat to the stability and progress of society. But it is not usually a crime, and such "criminals" cannot be brought before the bar of justice. The mistreatment of children and the denial of equality to women are common offenses but only in rare cases can and does the law step in. Most cases of cheating in business or of illegal bureaucratic actions cannot be tried in court, but are socially disturbing offenses. As I have mentioned earlier, one of the reasons why Americans are a turbulent people in that millions of incidents like these are dealt with by individual conflicts. The social peace is disturbed, but injuries to the social peace are scarcely definable in legal terms.

Since you are communists, I am duty-bound to report to you that some crimes of social class are not against the law in America. That is, you could not drag a man before the court for cursing the workers or farmers, or for claiming that the country belongs to the middle class and should stay that way. It should be obvious, too that a multitude of capitalistic behaviors, such as making a profit from buying and selling land or machines, are not only not crimes, not offenses, but proper behavior.

The second plague strangely contradicts the first, but I am sure that is true in China also. Many more actions are labeled criminal than should be. For instance, you cannot be jailed for smoking nicotine cigarettes but you can be jailed for smoking marijuana cigarettes. Adultery is very common, but it is usually carried as a crime on the law-books. If you drive a car before you are of a certain age, which varies from state to state, you may be arrested and punished. All sorts of "crimes" that are not crimes fill the statutes. There is even a law against flying kites in some places; I understand this ancient and beautiful sport has even been denounced in China recently as a display of idleness, anti-social individualism, and possibly industrial sabotage. And it is true that once in a great while a kite can short-circuit an exposed electrical connection.

But there is in American society an element psychologically akin to the fuming communist element, a puritanical element that sees in every free act a threat to some mysterious inner law, which turns out to be the indignant and troubled soul of the accuser, elevated to a high level of political enemies by accusing them of offenses.

Most crimes are not reported to the police-vandalism, pilfering, racketeering, robberies, assaults, rapes, briberies, swindles, and so forth. The victim feels that the police will do little or nothing to arrest the culprit; one is afraid of retaliation; one is dismayed at the tedious and prolonged procedures that have to be followed until the case is settled. Often, as in rape cases and bribery, the victim does not wish to endure humiliation and embarrassment. A recent study claims that in 1972 only one third of common crimes were reported by victims in Philadelphia, New York, Chicago, Los Angeles, and Detroit.

Also, because the laws are so multitudinous and American society is so complex, people violate laws they know nothing about; or they cannot help but violate one law in order to observe another, as when you would break into a car in order to move it so that you can move your own car from behind it. Police and prosecutors know of this situation and often refuse to make an arrest. But the same sympathy has its bad side, because all people are compelled in order to survive to break laws here and there. Hence, just as in China you can always, be accused of not understanding the words of Mao, in America you may be victimized by a policeman or prosecutor for breaking some law whatsoever. The police themselves often violate laws by accepting expensive gifts and taking bribes, and sometimes they protect racketeers and criminals for a share of the loot.

A fourth plague of injustice comes out of the method of handing accusations. The prosecutor has an arrested person in hand; he must charge him with a crime and then plead for his conviction before the court. So many actions are labeled crimes that there is usually a choice of charges to bring against to defendant. If the courts were swift, trials were short, punishments were definitely and sharply tied to a conviction, prosecutors without prejudice, and defendants without help, then the indictment would match the crime. But no one of these conditions is sustained.

Therefore, a crucial contest occurs before trial, in which the prosecutor tries to reconcile his opinion of the defendant with the difficulties of making his opinion carry through to a conviction. Since he is criticized by the proportion of cases in which he achieves a conviction, he often settles for a lesser charge. If he is saved the trouble of a trial, by the defendant's confessing to a lesser charge to avoid trial on a graver charge, the prosecutor will also be inclined to allege a lesser offense. Out of the complex factors affecting the particular case, a bargain is often struck and a trial avoided, or the prosecutor settles upon those charges on which he feels certain that he can obtain a conviction.

The end result is that one can never tell what kind of a crime has really been committed by examining the charge against a defendant. Sometimes, under special conditions, charges are brought in order to get a person to do something-- like pay tax money to the government or resign from an office-and then by agreement with the judge, the charges are dropped. A famous instance occurred when Vice-President Agnew resigned his high office in return for having charges of extorting and accepting bribes and evading taxes handled with the least gravity, namely, a declaration on his part that he would not defend himself against the charges. All parties agreed to the deal; the disgrace of resignation was considered sufficient punishment, although there is no record of its being a legal punishment, or otherwise, entering into the legal contest.

Accusations do not usually fit the crime. Nor, for that matter, do civil suits end clearly. Two practically similar auto accidents may result in court judgments that are many thousands of dollars apart. Since plainly a civil suit on an auto accident is as likely to go one way as another, the brilliant concept of "no fault" insurance has recently emerged; the insurers of all parties are forced to pool their insurance and divide it among the suffering parties "as if no one was at fault." The costs to the parties, to the insurers, to all other insured persons, and to the court system go down; the lawyers earn less fees.

The fifth plague of injustice occurs in the denial of due process of law in the events following an arrest and in the trial of a case. Many protections to persons compose full the process of law. A person may not be harassed by the police. He must be arrested with a proper court warrant or arrested in the act of committing a crime. He must not be forced to confess to a crime. He cannot be tried twice for the same crime. He cannot be tried for an act that was not a crime but was named a crime after he committed the act, nor can he even be tried for violating a law that is so vague that a reasonable person could not understand its meaning. Nor, if convicted, can he be subjected to cruel and unusual punishment.

With all of these protections, you may wonder how it is that anyone is ever convicted of a crime in America. About 17 percent of known offenses result in judgments of guilt. Obviously the system is operating in some fashion to reduce the number of persons deemed guilty of committing crimes. Obtaining the conviction of a stubborn and affluent defendant is not easy.

Even so, the original statement holds; there is a plague of violations of the constitutional rights of persons suspected of wrongdoing. In a grave and well-publicized instance, all of the proper procedures are followed. But given the case of a poor and ignorant person, it is highly unlikely that his case will be processed carefully. Rather, he is likely to be told that he is lucky to be treated with any consideration at all and that he would be well advised to accept whatever treatment is given him. By the time that Daniel Ellsberg's case was dismissed by he judge because of the bungling attempts of White House political authorities to intervene in the case, the costs to the supporters of Ellsberg had mounted into the hundreds of thousands of dollars. Not one American in a hundred can fight a determined prosecution along all the lines o "guarantees of due process of law." It would be absolutely wrong to believe that this plague has devastated the rule of law; the guarantees are present, active, and ever present in the minds of lawyers, police, prosecutors, defendants, and judges. If anything is responsible for the multitude of violations, it is the co-contaminating effects of all six plagues on the process of law.

When a person has been adjudged guilty of a crime, the chances that the punishment meted out to him will rehabilitate him or help the society are slender. Because "judges are answerable only to their varieties of consciences," writes Judge Marvin Frankel, "a defendant who comes up for sentencing has no way of knowing or reliably predicting whether he will walk out of the courtroom on probation, or be locked up for a term of years that may consume the rest of his life, or something in between." So begins the sixth plague.

Furthermore, the conditions of prison life have been proven to contribute to lives of crime when inmates are let out. In the face of strict deprivation and discipline, the inmates become a society of their own, following the code of criminals and learning from each other's techniques of crime. Under such circumstances, Americans have increasingly sought to do away with prisons.

Beyond the realm of the six plagues stand areas of American life where the system of justice are only justice are only beginning to develop. An American may spend 18 years in his family, 14 years in school, 60 years on and off the streets, 45 years at work, 1 to 70 years in an association, a church, and a union, and 1 to 50 years in politics. Where you spend your time you both enjoy and conflict with others. To describe completely the circumstances of justice in America, I would have to inquire into justice in all of these areas. For it is only on the street, and for politics, and in some labor grievances, and in relations among businesses that a fully juridical system, with all of its constitutional ideas and Practices, has evolved.

Today Americans are rethinking the theory of law in all institutions. One day, in the future, there will be a coordinated and consistent constitutional and public law of all institutions. Certainly, a law and a judicial procedure exists in all institutions; some religions, for example, have ancient bodies of laws covering contests an religious "crimes' among their members. Yet in no way can any American say that he can obtain due process of law in any major institution of the culture, except as schools, corporations, churches, and many other groups are up for examination, as I have mentioned above. If a society is to be thoroughly penetrated by the doctrines and practices of the free culture, this penetration must move into all of the society's major institutions, extending the practices that will produce the attitudes and morale upon which its larger success depends.


The six plagues present baffling obstacles to a dikaeic society. Although a majority of the informed and concerned public of America holds the highest ideals of treating crime and punishment, criminality is epidemic and means of dealing with crime are commonly failures. Again a contradiction ! The good of the system is producing the bad. The country with the world's highest homicide rate has a Supreme Court that has recently decided that putting a person to death as punishment for a crime is in most cases "cruel and unusual" and is prohibited by those words of the Constitution.

I cannot refrain from repeating the beautiful words of the lawyer who was seeking to defend his client on constitutional grounds against the penalty of death:

For man deliberately and needlessly to take life, which he does not understand, and to inflict death, which leads he knows not where, is an act that eclipses every other cruelty humanity can mete out or bear.

There are two ways out of this predicament. One should be dispensed with briefly. It is the 2,300-year-old theory of law and order of Lord Shang. "In the application of punishments, light offences should be regarded as serious; if light offences do not occur, serious ones have no chance of coming. This is said to be `ruling the people while in a state of law and order.'" He continues:

There is no more urgent task than banishing villainy, and for banishing villainy, there is no deeper basis than severe punishments. Therefore, those who attain supremacy, restrain by rewards and encourage by punishment, seek offences and not virtue, rely on punishments in order to abolish punishments.

Now you can begin to understand why Lord Shang is a monster in the guise of a legalist. Hear what he also says:

If in a country there are the following ten evils: rites, music, odes, history, virtue, moral culture, filial piety, brotherly duty, integrity, and sophistry, the ruler cannot make the people fight and dismemberment is inevitable, and this brings extinction in its train.... A country where the virtuous govern the wicked will suffer from disorder, so that it will be dismembered; but a country where the wicked govern the virtuous will be orderly, so that it will become strong.

A centralized, militaristic, bureaucratic state was Shang's ideal. His ideas were taken up. The first Emperor of Ch'in (China) ordered practically all the classics burned under pain of death, forced labor, and branding. Lord shang himself was executed when his protector, Duke Hsiao of Ch'un, died; he was so hated that he was torn limb from limb by chariots pulling in opposition and his family was exterminated.

The hope and conviction, whatever all the evidence of history to the contrary, that law is a simple matter of grabbing an accused and inflicting dire punishment upon him still pervade many millions of minds in America and around the world.

However, there can be no question of the way America is tending. It is toward the Kind of justice and society (the two cannot be separated) that Lord Shang detested. Crime is acquiring a new definition. Defense of the accused is strengthening. The idea of "punishment" is also changing. No wonder, then, that here as in other areas of American life there are confusion, disorder, contradictions, all the best of things and all the worst, and it is the best of times and the worst of times for justice.

Crime in America is coming to mean any forbidden coercive action that does not itself result from a context of coercion. A person who is directly and indirectly impelled to harm persons or property by the mental or physical condition of himself or others who influence him continuously or immediately is looked upon as a victim who is victimizing others. Whereupon, the task of the law is to break, the chain of victimization wherever an opportunity is offered, but by means that do not reinforce or multiply the victimization. Any form of injustice to a culprit is victimizing a victim. Any form of perpetuating the movement of the victim on a path leading to further victimization of himself or others is considered unjust as well. When crime and punishment are viewed in this light, any reasonable person is prone to confess, "We are all criminals, victims, and innocents!"

The distinctions between crime, tort, and contract violation, once the bedrock of legal specialization, are becoming dim. A tort is, after all, an injury in which there is the same chain of victims. An example of the recognition of new victims is seen in the field of ecology. There, concerning environmental damages, it has now become possible for many groups of people, affected "indirectly" by polluting or other costly, undesirable social behavior, to get a lawsuit admitted into court against the offending person, company, or government. This may happen regardless of whether direct monetary harm of the plaintiffs can be shown. A great new form of social control over anti-social behavior has developed. So, too, with the breaking of contracts. The public nature of contracts is ever more prominent in this era of large-scale organization; hence, the lone person and underpowered group are compelled to view their poor bargaining position as similar to the perils of the person who faces a criminal accusation.

The doctrine of free will and consent then tends to vanish. Once the untenable rationalistic psychology of Roman and medieval law is cracked and broken under the pressure of the modern human sciences, the law has to be reconstructed from the beginning. To say "Ah, this will never happen ! Such rending and painful change will arouse the massed opposition of courts and lawyers" makes no sense. It is like Lord Shang saying "Off with their heads!"

As the institutions of society exhibit the same human beings in natural and predictable conflicts under perfectly understandable conditions, as the same institutions exhibit themselves as nothing but little states, governments, and political processes, the claim that they must respond to the same goals, procedures, and remedies becomes ever more insistent. What is to be feared, indeed, except that life and law will become simpler. And simplicity is a near neighbor to peace and tranquility. In its own way communism has been amalgamating effectively the law. Americans, I think, if they put themselves to the task, can do the same, but it will be under the more real personal guarantees of the American Constitution. On the Chinese chessboard of legal ideology, the communists have moved the laws to capture the person, whereas the Americans have moved the person to capture the laws.

Once more, we see America as beset by a most difficult problem, one that has tortured reasonable and humane jurists and philosophers throughout history. Here is a people, already confronted with many obstacles in breaking through to a new and higher stage of civilization, attempting in the middle of the general transformation to achieve the transformation of justice as well.

What is to be done? They cannot go back to the doctrines of Lord Shang. Else, not only will the cause of justice be lost, but also all of those virtues that Shang called vices. The problem is to push the "good" through the jungle of "bads." Legislatures can help the courts if they will sponsor a rewriting and codification of American criminal and civil law. The courts can help if, as they accept this responsibility, they will turn to the fields of psychology, sociology, and ethical philosophy. This can be called the "philosophical codification of justice." It can be enacted into law by the legislatures.

Secondly, the legislatures can help cure the plagues of injustices if they will fumigate and aerate the legal process. That is, open up all kinds of legal action to informal procedures where the satisfaction of all parties is the guiding directive rather than the discovery of some written precedent that appeals to a given judge.

Decentralize, too, the handling of law cases so that they can be dealt with in the environment where the contested incident began. Sit the judges without their robes as chairmen at a round table where the parties, jurors, and witnesses enter and sit; the authority of the physical setting in a court is terrible, which is to say, irrational and provocative of fear and misunderstanding.

I have spoken at length about the plague of legalism in America and the six plagues of injustice that nevertheless infest the country. Note the paradox: if you give everyone who has a real complaint an entirely just process of law, the process of law may become interminable. Are we not then advocating a tremendous plague of legalism, as well as a further spread of bureaucracy?

The answer must be yes, unless some mechanisms are introduced to give due process of law without legalism and bureaucracy. Codification, unification, informal procedures, and decentralization have been proposed as effective mechanisms. Ultimately, the legal process has to be placed so squarely upon the context of the cause of legal action that the countless ingredients of due process of law collapse back into a single atmosphere of justice. Acting like a sponge, the legal process would soak up all the water that has fearfully extended and complex system of law in America has emerged out of a society of people who do not know each other; therefore, they insist upon every conceivable protection of their dealings with each other in order to prevent class, geographic, ethnic, religious, and commercial prejudices from disturbing the process of law.

Suppose a man has the job of hammering nails into a table. A simple task. But suppose this man no longer owes anything to anybody and comes to dislike his work. The simple task becomes as hell for him and for society. He has to be controlled with regard to what he is hitting with his hammer and how often, by elaborate rules. Then an elaborate rule of law needs to be arranged so that he will not be controlled unjustly; otherwise, for example, his erratic hammering will be declared criminal or crazy without hearing and trying to understand all the explanations he can think of. Very soon, of course, the elaborate procedures to detect wrongs and rights will exceed any economic value of the man's hammering.

This kind of situation occurs by the millions in modern America. I warrant that those American professionals, scholars, and practitioners of the helping and healing occupations who seek to collapse the grossly machined system into a set of more intimate system are pursuing the right way. When conflicts are settled within the context of their occurrence, with a naturally understanding "public," "jury," and mediators arbitrators, the demands for passing through the whole range of legal protections is reduced drastically.

The exerciser of legal power is more correct when exercising among his kind; the criminal is more honest among his kind; businessmen have more trust, faith, and credit when dealing within their own small publics. Therefore, both to reduce legalism and to promote justice, arrange the law to fit the context, of the action; reduce law to informal action as far as possible; and preserve the elaborate enforcement and due process machinery for the appeal that will occasionally occur when the parties to an action (whether criminal or civil) are too strange to each other to acknowledge a common ground of justice. Give the hammer man a human setting that he respects, and he will neither be trying nor be tried.


The law schools of America have provided some 10,000 judges, 236,000 privately practicing lawyers, 40,000 corporation legal employees, and 36,000 government lawyers. Nearly 20,000 new law degrees are conferred annually. Reform of the law schools has just begun. Courses in ethics, sociology, and psychology are more common nowadays. Field work in helping the poor in need of legal aid is increasingly part of the student's curriculum. (The average poor family is said to have at any given time three valid legal complaints, none of which it can afford to pursue.)

Certainly the movement to open up the system of justice, codify the laws, and bring about a new kind of rule of law in America is the responsibility of the law schools. The courts are bound up in a tangle of trial work, the legislature are responsible for much else besides the pursuit of dikaia. The students, for the most part, are headed toward being victims, too, in the chain of injustices that produces a chain of victims. If every useless memorized detail of law school courses were transformed into time spent considering plans for a new legal system to produce more effectively the inner meaning of constitutional rights, a dramatic change in Americans law would soon take place.

"Sir," said King Hui to Mencius. "You have come all this distance, thinking nothing of a thousand li. You must surely have some way of profiting my state?"

"Your Majesty," answered Mencius. "What is the point of mentioning the word `profit'? All that matters is that there should be benevolence and rightness. If Your Majesty says, `How can I profit my state?' and the counselors say, `How can I profit my family?'and the gentlemen and commoners say, `How can I profit my person?' then those above and those below will be trying to profit at the expense of one another and the state will be imperiled."


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