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Chapter10: Law and Justice


The first lines suggest a brief memory and comprehension test: Name six possible definitions of law and give an example (not from the text of each.


Here we find the several roigins of law out of tradition, naked power, Gods, heroes, and reason.

Principle X passes the buck to our presumedly shared philosophy of democracy (kalos) and asks that we project it into the future and scientifically produce law directing human behavior toward its goals.


The six dikaic improbabilities (pronounced de-cake) are set at 20 percent each. In reality they would vary, but I doubt very much that a thorough and systematic survey would reveal any one of them to be less than 20 percent, and most of them would reach a 10 percent probability.


I guess you don't have to scare people more than they are, but in re dikaic improbability 3, the infrequency of reporting crimes, the Gallup Poll has just released these figures from a December 1972 survey: A national cross section of 1504 adults responded to questions of whether they had been victims of a burglary, assault, robbery, car theft, and/or vandalism in the preceding year.

GroupingPercent "Yes"
National Sample21
Small Town and Rural13

Note that this does not include corruption and graft, not crimes against government and companies.


Reflecting the Reiss quotation, the New York City Knapp Commission, in its 1973 report, estimated that a majority of city police were petty grafters or worse. The New York Daily News, on January 17, 1972, reported that one-third of all cigarettes sold in the city were smuggled in without paying state and city taxes. On another page, the same paper reported that one-third of the paint manufacturers were producing paint containing over one percent lead and labeled illegally for indoor use. Investigators found one paint labeled "safe for cribs" that contained 9.5 percent lead! The same issued (you don't have to go far to prove our case) reported that "more than 21,000 stolen cars abandoned by thieves on the city's streets last year were collected, stripped of valuable parts and crushed into junk at the city's direction without any notification to the car owners or their insurance companies." The source was the Citizens Budget Commission, which declared it common practice to drag the car first to a purchaser of its valuable parts before proceeding to the junk yard. In re offenses against government, 105, 129, or 38 percent of all fire alarms sounded in New York City in 1971 were false alarms. Etc., etc.


Here is a test on the prevalence of violations of civil rights. It is intended to teach something about those rights as the test is worked out individually and/or in class. I asked my students to answer each question "yes" or "no" on a sheet of paper. We tallied them and found several "yes" answers in each case (in a class of nineteen). We discussed the results and discovered that in some instances students were personally familiar with several other cases. We wondered how to handle the data statistically. Could we extrapolate to the population? Why not? Could we calculate the overall probability that any given person would suffer a deprivation of rights? Why not? What groups in the population would have higher "yes" scores? Why?


It may be useful to print here a more formal list of substantive, as opposed to procedural (see test above), civil liberties. It is adapted from Robert G. McCloskey's table in "Civil Liberties," International Encyclopedia of the Social Sciences (New York: The Macmillan Company and The Free Press, 1968), Vol. 3, 308.


Restraints against interference in one's rights by private companies, groups, and persons:

1. Bodily harm or restraint (like assault and battery, holding a person against his will, etc.)
2. Economic coercion (holding a person's money or property, forcing him to sell out, etc.)
3. Libel (hurting a person's reputation by untrue accusations and name-calling)
4. Involuntary servitude (forcing a person to work against his will)
5. Discrimination (against a person because of his race, nationality, religion, sex, etc.)

Restraints against government interference in one's rights:

1. Political rights
     To vote and to be a political candidate
     To engage in free political discussion
     To assemble freely
     To organize groups freely
     To petition public officials freely
2. Economic rights
     To own and use property
     To pursue an occupation
     To buy and sell in commerce
     To make a contract
3. Private rights
     To life itself
     To physical liberty and movement
     To practice religion
     To practice an art
     To pursue science (right of inquiry)
     To teach
     To privacy of person and home
Provision of positive rights:
1. To a minimum or basic income
2. To an education
3. To health services
4. To decent housing
5. Etc.

Not a single right is fully available, for at least four reasons:

1. One right conflicts with another. (You can't practice painting by splashing people with gorgeous colors against their will.)

2. Politics and prejudice simply work to deny many rights.

3. The system of enforcement works at about the 10 percent level of efficiency.

4. There is little agreement yet on the provision of positive rights. (What is "an education"?)


When we say that general delinquents know what justice should be, we are saying what the sane experimenters might have said; these were the ones, you recall, who let themselves into mental hospitals, there to discover that the only people who judged them sane were the insane. The little test that begins this section could be carried out by members of the class, perhaps with some additions and refinements. There aren't likely to be Supreme Court Justices around, but they can sample from the population stratum that provides Justices, such as law school professors and federal judges.

The eternal question should be put afresh to each generation: "Do most people punish themselves better than the authorities anyway?" True or false?


I am proud of A1 (see dialogue); he is getting better all the time.


I state three grim methods of assuring political liberties, and then vote for three ideal methods--education, checks and balances, and selfgovernment.

How to achieve these forms the balance of the chapter. Any large reforms of justice will probably occur in tandem with a general reform of society.


Here I introduce the concept of "virtual systems." These might be made to work not only within the legal system but also within any institution of society that is undemocratic (kakotic). Could they work within a university? Within a company? An army? A government agency? I recall: the idea of "shadow governments," Jesuits and Masons, cabals, cells, informal organizations inside formal ones, the Leveller movement inside Cromwell's army, caucuses, worker groups, and many another incipient, aborted, halfway, good and bad hint of such "virtual systems."


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