In an earlier column I noted that we use the idea of justice in two different ways. According to the first, to call something just is to praise it morally and to call it unjust is to condemn it. This, the general sense of justice, does not signal any particular grounds for praise or condemnation: ‘just’ is little more than a thumbs-up, ‘unjust’ a thumbs-down. But we also use ‘justice’ in a second, more specific, way, to pick out a particular virtue that arrangements might have or lack. This is what Justinian’s Digest has in mind when it tells us that justice is the disposition to render to each his due (‘Suum cuique tribuere.’) Justice in this sense involves a special attention to the allotment of benefits and burdens amongst people, either relative to what others are getting or to relative some standard of merit or desert.
Sometimes, however, we should be less concerned with relativities of either kind and more concerned with what we are doing or are willing to do, less attentive to comparisons and more attentive to our conduct as such. This is the territory of humanity and inhumanity. Inhumane treatment is something the law should, and normally does, condemn; humane treatment is something to which it should aspire. Neither is a matter of justice. In fact, focussing on justice tends to obscure the independent importance of humanity in law.
We can see the difference in thinking about criminal penalties. To punish A more severely than B when there is no relevant difference between their situations would be unjust. So too to punish shoplifting more severely than murder: it would be out of all proportion to what the respective offences merit. But think, now, about the permissibility using of crucifixion, or the rack, or stoning as punishments. These are immoral (and in Canada unlawful) not because they are unjust but because they are inhumane. One mark of this is that we can see that they are wrong without embarking on any comparison amongst offenders or any comparison between an offender and his guilt. We are tempted to say that these wrong, not to the extent that they involve any inequality or disproportion, they are just plain wrong.
That is roughly right, yet we can also explain what it is about these forms of treatment that makes them wrong. The explanation is not complicated. They are inhumane. By this I mean that they treat the offender as something other than a human being, and also that a willingness to use or even entertain such treatment is to compromise one’s own standing as a human being. It is to behave as if one were incapable of understanding what it is that makes people worthy of respect, or incapable of understanding that this applies even to those who have done serious wrong. Inhumane punishment treats a person not as a human but as a thing to be used or manipulated, as an object without dignity. Inhumanity is thus on a par with brutality: it treats others as brutes and it makes a brute of oneself. Inhumane treatment is brutalizing twice over.
Think about how this bears on the recent American execution of Teresa Lewis — the 39th judicially supervised killing in the US this year alone. The most important issue here is not whether the penalty was out of proportion to her crime, nor even whether she was treated less well than other offenders with similarly limited cognitive incapacities. The issue is whether, in view of the meaning of execution and the fallibility of every process that could be designed to administer it, the state has the authority to treat anyone this way. Yet in a repulsively cool, bureaucratic, statement condemning Ms. Lewis to death, Virginia Governor Bob McConnell observed only that higher courts had upheld her sentence, that there was no authoritative finding that she was ‘mentally retarded,’ and that even the Supreme Court declined to intervene. ‘Accordingly,’ said McConnell, ‘I decline to intervene and have notified the appropriate counsel and family of my decision.” Accordingly? Did McConnell really think his bland recitation of the history could possibly count as a reason not to act now? What must already have happened to one’s moral compass for one to be the kind of person who is able to speak this way, let alone to have “notified…the family” of this “reason” for judgment?
Or consider Israel’s continuing siege of Gaza. The collective punishment of a people, most of whom have done nothing whatever wrong, undeniably violates human rights. But it is important to understand why. The key issue is not whether blockading civilians is worse than kidnapping an Israeli soldier, or even whether the blockade is out of proportion to the threat of Hamas’ rocket and mortar attacks on Israeli civilians. These calculations neglect the central moral point. Laying siege to a captive, mostly non-combatant, population brutalizes captive and captor alike. Even the UN’s Goldstone Report misunderstood the stakes here. It called Israel’s actions:
a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.
Even so, we must surely ask: what could ever count as a proportionate attack on, or humiliation of, a civilian population? What is the right amount for Israel to dehumanize Palestinians? In proportion to their threat? In proportion to their national ambitions? These questions should not be answered; they should be refused.
Lawyers (and legal academics) are great lovers of justice: it is our professional disability. If a wrong is not a matter of burdening the wrong person or burdening someone in the wrong amount we find it hard to get a fix on it. We are therefore often tempted to force everything into the realm of justice and injustice. Our first defense is always ‘the right person’ or ‘the right amount’, our first accusation ‘the wrong person’ or ‘the wrong amount’. That sort of monocular vision misses the depth, and reality, of many of the most important issues we face. Humanity is different from, but no less important than, justice.