Law in Contemporary Society

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CameronLewisFirstPaper 6 - 22 Apr 2012 - Main.EbenMoglen
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 "Will I be executed for what I have done?" asked Anders Breivik just after surrendering to police for the mass murder of 77 people in Norway this past July. Holmes writes, by way of introduction to the space between law and morality, that to understand law alone one must adopt the perspective of the bad man. The bad man cares only for the material consequences of his actions, his behavior guided by the risk of state punishment through fines, imprisonment, or execution. The desire to avoid punishment as the only check on individual behavior is a chilling prospect, but it is an indisputable part of the decisions we make every day. If there is no risk of being caught in deciding to pursue some temptation, the final decision may end up the same but the path taken is surely not. The fundamental self-interest of the bad man, and to a lesser extent every man, remains. But what about those individuals who go far beyond that threshold? What about those who disregard not only moral codes, but legal ones as well in pursuit of their goals? I am talking about the really bad man.
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Maybe the "really bad man" is actually crazy rather than bad? That will surely be the issue concerning Anders Breivik.
 The really bad man, like the bad man, cares not at all for individual or societal morality. Unlike the bad man, however, he denies the state its punitive power and refuses to consider the legal consequences of his actions. The result is that when the harshest available punishment holds no sway, society scrambles to avoid the notion that the law may be powerless in the face of such a person.
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Attempts to understand the really bad man's mental state are inevitably speculative, and any ex post facto analysis of such a person will always suffer from the adversarial, identity-based nature of our public discourse. What ends up being decided about the really bad man is that their actions often emerge from something like extreme desperation, even mental illness. But to say that only those with mental illnesses take such horrific action is a conclusory shortcut. Behavior so far outside a universal human norm could plausibly be, by itself, mental illness, especially when the only evidence is the end result. Despite this difficulty, the aggregate societal response is an attempt to adequately reconcile the illusion of control with its apparent failure.
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Demonstrating once again that law is not the force that holds society together.

Attempts to understand the really bad man's mental state are inevitably speculative, and any ex post facto analysis of such a person will always suffer from the adversarial, identity-based nature of our public discourse.

Really? It seems to me that the "really bad man," which means so far probably the insane man, has a mental state that is if anything easier to identify than that of the "bad man," whose unconscious may have developed in any one of a number of subtle directions.

What ends up being decided about the really bad man is that their actions often emerge from something like extreme desperation, even mental illness. But to say that only those with mental illnesses take such horrific action is a conclusory shortcut.

Not conclusory unless independent of the available evidence.

Behavior so far outside a universal human norm could plausibly be, by itself, mental illness, especially when the only evidence is the end result.

No, especially when accompanied by other behavior or ideation accompanying particular disorders in other patients.

Despite this difficulty, the aggregate societal response is an attempt to adequately reconcile the illusion of control with its apparent failure.

One prominent social response.
 

Society’s response

The storm of sensationalism and speculation that comes as a result of tragedy serves to apportion blame among all those involved. It is a process of collective rationalization where the people responsible are identified so the rest of us can ignore more fundamental problems. TV personalities are more than content to rant and rave on any given weekday, but it’s when tragedy strikes that stars are born. The first person to utter a thought that later comes to dominate the public discourse gains instant credibility, and will assuredly be called first the next time a talking head is needed.
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Part of what these voices do is serve the societal purpose of finding someone or something blameworthy, thereby relieving the pressure on the rest of society and reducing any nagging hint of complicity. Such is what happened at my school, Virginia Tech, in April 2007. Within minutes of the nonstop media coverage that was to continue for weeks, innumerable analysts filled the void of actual information with righteous and provocative demands on the administration, the police, and the ‘system’. Yet the answer is simple. The person responsible is the one who pulled the trigger. The vortex of authority and social forces swirling around them, while certainly contributory, ultimately fails against the deliberate acts of a really bad man. So it was with the legal system, when precious outrage was directed at a judge who let someone slip through the cracks. So it was with the police, when they mistakenly assumed that the first shooting was an isolated incident. And so it was with the administration, when their apparent failure to communicate with students under existing policies preceded the second shooting. Never mind the benefit of hindsight; the altar of public opinion requires a lamb. Of course there were crucial lapses and communication failures that contributed to the tragedy, and responsibility moving forward should rightly fall to those who will be in a position to fix those problems and prevent recurrences. But considering the presumption of personal liberty in our society, such efforts can hardly prevent the next determined really bad man.
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Part of what these voices do is serve the societal purpose of finding someone or something blameworthy, thereby relieving the pressure on the rest of society and reducing any nagging hint of complicity. Such is what happened at my school, Virginia Tech, in April 2007. Within minutes of the nonstop media coverage that was to continue for weeks, innumerable analysts filled the void of actual information with righteous and provocative demands on the administration, the police, and the ‘system’. Yet the answer is simple.

Probably not as simple as we will unconsciously need to believe, right?

The person responsible is the one who pulled the trigger.

Unless the person who pulled the trigger is not responsible because of some intervening condition, like severe mental illness or duress, that we consider defeats legal as well as moral responsibility for acts.

The vortex of authority and social forces swirling around them, while certainly contributory, ultimately fails against the deliberate acts of a really bad man.

Also fails against the not-deliberate acts of a really insane one.

So it was with the legal system, when precious outrage was directed at a judge who let someone slip through the cracks. So it was with the police, when they mistakenly assumed that the first shooting was an isolated incident. And so it was with the administration, when their apparent failure to communicate with students under existing policies preceded the second shooting. Never mind the benefit of hindsight; the altar of public opinion requires a lamb.

There are both rational and unconscious motives lying behind the behavior of investigating and criticizing the performance of social actors following catastrophic events. Describing the causes does not seem to me to result in an argument against holding such inquiries, anymore than understanding grief and mourning results in an argument against holdings funerals.

Of course there were crucial lapses and communication failures that contributed to the tragedy, and responsibility moving forward should rightly fall to those who will be in a position to fix those problems and prevent recurrences. But considering the presumption of personal liberty in our society, such efforts can hardly prevent the next determined really bad man.

Preventing insane people from doing insane things may be theoretically impossible, but this is not a rational, let alone resonant, argument against being more careful and effective in our care for the mentally ill, or in being more scrupulous in preventing mentally-ill people who are at risk for violence from acquiring sophisticated weapons.
 

Can anything be done?

What struck me then, and I struggle with now, is that once a person has decided to become the really bad man; the legal system is impotent. An individual, dwarfed by the power of the state, nullifies that power by denying its coercive effect. Simply put, if the worst you can do is kill me, then I’ll laugh at you as I take that right for myself. Whatever deterrence value institutionalized power has over the rest of us is lost against the individual who seeks to prove himself above that authority. Either they end their own lives in a final act of defiance or, like Breivik, they bask in the revilement and attention, seeking execution by the state as final retroactive validation.
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You have not explained what this analysis contributes when the offender is insane, as Breivik surely is, and Cho Seung-hui also surely was.
 Afterward, the public consensus eventually settles on those people bearing responsibility for it. Blame is assigned to counter the frustration of being unable to punish the actor, and to restore our jarred illusions about the efficacy of state power in keeping us safe.
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Maybe. I think both the conscious and unconscious motives lie elsewhere. How did you establish that these are the only ones?
 Perhaps, ultimately, the social process of assigning blame and the labeling of the really bad man as mentally ill are ways to express the inadequacy of any other alternative. To say that they are mentally ill is to rationalize society's apparent incompatibility with the really bad man. Similarly, to say with certainty that fault rests with these few parties is to cooperatively settle nagging doubt at the ability of our law and order to stop or save the really bad man once he has turned against all.
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I don't understand what this means. We say people are mentally ill for the same reason we say people are physically ill: because we have examined them and arrived through the collection and analysis of evidence at diagnostic conclusions. We may misunderstand or misinterpret the evidence for any number of reasons, and it is appropriate to assume that some diagnoses will be faulty. Of course conclusions presented in the course of high-stakes litigation will be hotly controverted with apparent success on both sides, but that does not prevent facts from existing, or even consensus from developing outside the crucible of litigation.

Now that Anders Breivik has given days of public testimony, I do not think it will be difficult for people to reach the conclusion that he is insane. In Cho Seung-hui's case, the presence of past diagnostic recognition of his illness sufficiently probative of dangerousness to self and others to justify mandatory treatment is pretty conclusive.

I don't understand why you are at a loss for things to do. Cho should not have been able to acquire firearms. Obvious, reasonable national enforcement of existing national firearms regulations that prohibit people in his situation from gaining access to killing machines would have been sufficient to save all those lives.

 

Commentary on commentary


Revision 6r6 - 22 Apr 2012 - 18:10:42 - EbenMoglen
Revision 5r5 - 27 Mar 2012 - 21:41:55 - CameronLewis
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