Exemplary Justice and Civil Disobedience
11 February 2014
Exemplary Justice and Show Trials
Exemplary justice is a very old idea, and it has its origins in the inability of a political entity to effectively enforce its writ. Thus the idea of exemplary justice grows out of an intrinsic limitation of early political societies. In brief, exemplary justice is to make an example of a individual. The horrific punishments that we read about in history are largely a function of exemplary justice: it was so unusual to capture an individual guilty of a crime, that particularly brutal punishments were meted out as a deterrence. Thus the potential criminal would know that his risk of being caught was low, but that, if caught, the punishment would be so horrible that the low risk of being caught is balanced by the disproportionate consequences in the unlikely event of being caught.
It is surprisingly difficult to find contemporary sources discussing exemplary justice; contemporary philosophers of law and politics have had little or nothing to say on the topic. You will not find an entry on “exemplary justice” in any of the major dictionaries of philosophy (such works as I have cited in many previous posts), yet I found an exemplary characterization of exemplary justice from almost a hundred years ago:
“…exemplary justice, as it well known, aims to establish in the social mind a permanent association between the criminal deed and some painful consequence, in order to prevent the repetition of a similar deed in the future. This form of justice pays no regard to the offender; its attention is fixed only on the needs and welfare of society.”
Gustave A. Feingold, “The Association Reflex and Moral Development” in The Journal of Genetic Psychology, Volume 23, 1916, p. 473
Although the contemporary silence on exemplary justice might lead one to suppose that it no longer plays a role in contemporary society, in which the proportionality of retributive justice is carefully calibrated to the nature of the crime, there is one form, however, of exemplary justice that came of age in the twentieth century, and that is the show trial. The use of mass media — newspapers, magazines, radio, and television — to inflame public opinion was central to the mobilization mass sentiment against an offender whose crime subverted principles upon which a given regime was founded.
The most notorious show trials of the twentieth century were stage-managed by the most notorious political regimes of the twentieth century — Soviet communism, Nazi Germany, and communist China under Mao. However, there is a sense in which we can consider the Scopes Trial as a show trial, so such events are not unique to dysfunctional regimes. This recent innovation in exemplary justice demonstrates that, despite its antiquity, the idea of exemplary justice continues to be relevant in our time and cannot be dismissed as a defunct idea.
Civil Disobedience and Popular Ideology
Even as the idea of exemplary justice has largely fallen out of public consciousness, another idea has taken its place, which is closely related to exemplary justice, but which resemblance has not been widely recognized. I am speaking of civil disobedience. Unlike exemplary justice, the idea of civil disobedience is relatively recent, having its origins in the nineteenth century, and, quite specifically, in Henry David Thoreau’s essay, “On the Duty of Civil Disobedience.”
Unlike the idea of exemplary justice, civil disobedience is widely treated in contemporary literature. Here is a concise definition from a relatively recent source:
civil disobedience, a deliberate violation of the law, committed in order to draw attention to or rectify perceived injustices in the law or policies of a state.
The Cambridge Dictionary of Philosophy, 2nd Edition, Editor: Robert Audi, Cambridge et al.: Cambridge University Press, 1999, pp. 144-145
Civil disobedience, although a recent idea, proved to be one of the ideas that shaped the second half of the twentieth century. Mohandas Gandhi was influenced by Thoreau, and put Thoreau’s idea into practice as a mass movement in a country where the colonized masses so greatly outnumbered the colonizing forces that civil disobedience changed the direction of India’s modern history. After Gandhi, Martin Luther King jr. employed civil disobedience in the civil rights struggle in the United States, successfully turning public opinion against segregation laws in the US, which might also be said to have changed the direction of US history.
There are few ideologies that have shaped the fate of nation-states in the twentieth century, as I have pointed on in several posts, especially in relation to environmentalism, which is one of those few ideologies (cf. Ideology in our Time). While civil disobedience is not precisely an ideology, it is not entirely independent of ideology. Civil disobedience can only be effective when the campaign against formal legal institutions has the sympathy of a sufficient number of individuals that social change can be effected by the direct action of these individuals. Thus the content of civil disobedience reflects populist sentiment.
Exemplary Justice and Civil Disobedience
There is a sense in which exemplary justice and civil disobedience are each the mirror image of the other. Civil disobedience could be called exemplary defiance of the law, in order to more explicitly contrast it with the exemplary enforcement of the law. One might say that civil disobedience aims to establish in the social mind a permanent association between injustice and some socially painful consequence.
Exemplary justice is the response of formal, legal institutions to their inability to enforce their writ; civil disobedience is the response of those subject to formal, legal institutions of the inability of those institutions to enforce their writ. Both, thus, are predicated upon the intrinsic limitations of political societies, though the first approaches this from the perspective of the state while the second approaches this from the perspective of the population of the state.
Both of these ideas implicitly recognize Weber’s definition of the state as the legal monopoly on violence; exemplary justice celebrates this legal monopoly on violence, using it to social ends beyond the limits of the use of this violence, while civil disobedience exploits the legal monopoly on violence by not even seeking to employ violence but rather to employ non-violence. If the state as a legal monopoly of violence, it does not retain a legal monopoly on non-violence, leaving non-violence civil disobedience open as an avenue of protest against the state.
When one sovereign nation-state seeks to force another sovereign nation-state to do its will (a close approximation of Clausewitz’s definition of war, “War therefore is an act of violence intended to compel our opponent to fulfill our will”), it goes to war, or otherwise inflicts damage on the other nation-state. Each sovereign nation-state, reserving to itself a legal monopoly of violence, is free to use violence on other sovereign nation-states, and this is what we call war. The anarchic international system allows for the possibility of war though the de facto legitimization of redundant monopolies on violence.
Civil disobedience is parallel to war in its use of mass mobilization, and might be defined as, “an act of non-violence intended to compel our opponent to fulfill our will.”
The shift from state power to popular will is revelatory of the growth of popular sovereignty, which has been definitive of the modern era since the series of revolutions that shook the Western world from the American Revolution of 1776 to the French Revolution of 1789 and then the series of revolutions throughout Latin America that resulted in the decolonization process and the formation of independent nation-states in Latin America.
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