Law in Contemporary Society

What about the really bad man?

-- By CameronLewis - 16 Feb 2012 -- Revised - 1 August 2012

The Really Bad Man

"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. Oliver W. Holmes writes in distinguishing law and morality that to understand the operation of 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. But what about those individuals who go far beyond that threshold? What about those who disregard legal codes as well in an effort to reject society?

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 acts in spite of the legal consequences. This denial can take the form of a symbolic act, an inexplicably violent tragedy as act of power inevitably culminating in suicide or arrest. In the aftermath, it is inevitably settled that the really bad man’s final act emerged from some kind of extreme state of mind or mental illness. How else can this violence be explained? Behavior so far outside human norms is plausibly mental illness in itself, more so when the only evidence is the outcome. When the really bad man has a history of mental health issues, it is easier to accept that explanation and end the inquiry there.

The Societal Response

The resulting storm of speculation and scrutiny is a collective rationalization that apportions responsibility among all involved. The need for answers drives the social goal of finding someone or something blameworthy, thereby relieving the shared burden and reducing any nagging hint of complicity. Such is what happened at Virginia Tech on April 16th, 2007, when Cho Seung-hui killed 32 students and then himself. Within hours, the nonstop media coverage featured innumerable analysts filling the void of actual information with righteous and provocative demands on the administration, the police, and the ‘system’. Powerlessness against the wrongdoer drives a search for other targets, even though the person ultimately responsible remains the one who pulled the trigger.

A diagnosis of insanity—established through medical examination, treatment history or past behavior serves as explanation and possible excuse. A successful insanity defense may lessen the legal consequences of criminal acts or lead to indefinite treatment in a state mental health facility, but it does nothing for the sense of loss and antipathy felt by society at large. To salve that wound, the storm continues. Throughout media coverage of each successive tragedy, the marginal roles of countless bystanders are weighed and measured to determine their blameworthiness.

Of course there were crucial lapses or failures that played a role in the tragedy and responsibility should rightly fall to those with the power to prevent recurrences. The progress of building the walls higher and preventing those same cracks from future exploitation is often achieved, but considering the presumption of personal liberty in our society these efforts can hardly prevent the next determined really bad man.

Whatever deterrence value institutionalized power has over the rest of us is lost against he who seeks to prove himself above state authority. Their effort usually concludes by either taking their own lives in defiance or, like Breivik, basking in the revilement and seeking execution by the state as final retroactive validation of their tortured worldview. For the egomaniacal Breivik, the prospect of mental illness is a slanderous attempt to delegitimize his convictions and distort the true nobility of his cause. Ultimately, it is a repudiation of his grand ambition, forced to realize that he will not die worshiped as a hero but alone: discredited, reviled, and insane. However, it is not all that simple. The recent tragedy in Aurora, CO and the subsequent media coverage has focused on the inexplicability of that shooter's motivations, a narrative focus that mirrors the Virginia Tech tragedy in 2007.

What is the Solution?

The path forward often seems clear, and much of the value in recovery is in identifying those concrete ways that our safety and security can be improved. Across the country, a relatively inexpensive fix: universities and other institutions have installed notification systems able to inform students immediately of any emergency. But the broader problems persist. Enforcement and extension of existing gun control regulations is zealously resisted through a Revolutionary interpretation of the Second Amendment, and an overhaul of the mental health system remains far down any politician's list of priorities. The brief arc of media coverage covering the recent tragedy in Auror, CO demonstrates that problem. With a consensus that further gun regulation would not be pursued by either party, the emphasis shifted to the mental health system. Once reform is dismissed as untenable in an election year, a slow fade in media coverage makes way for the next headline.

The virtue of our system of government rests in the liberty and personal freedom established by right despite constant encroachment. In the face of that freedom, a really bad man--mentally ill or sane--will always be able to find the means and opportunity to orchestrate a final act. The inadequacy of the legal system in the face of these individuals matches the failure of other forms of social control. In the end, the really bad man has rejected not only the legal system, but society entirely. Once that alienation is complete, he identifies as a true outsider, observing the workings of a society that has rejected him and plotting a grand revenge.


23 July 2012

See Eugene Robinson's article in the Washington Post about the recent tragedy in Aurora, CO for a little bit of insight into the difficulty of approaching these problems. After the first two days of coverage, including an Editorial Board article advocating stricter gun laws, the Post published a selection of the many Letters to the Editor received.

24 Apr 2012

Eben, I would like to keep working on this paper through May. While I'm happy with the shift in direction, and realize that mental illness is too large a part of this issue to ignore, I am unhappy with the conclusion.

27 Mar 2012

Carl, I appreciate your thoughtful comments on my essay. Part of what was frustrating as I finished it was knowing that it didn't fit all that well together and not being able to understand why. Your fresh perspective made me realize a couple of things:

  1. My best conclusion doesn't have anything to do with imposition of the death penalty, as I wrote it. Instead, I work part of the way through the frustration and confusion I (and society, in my opinion) feel when faced with a problem like this and ignore analysis of that response.
  2. Your point that I address both society's assignment of blame and the labelling of the RBM as mentally ill made me realize that approaching both of these together as two indications that society has an urgent need (great phrase). In short, they both do the work of relieving society of the burden, in addressing the two unanswered questions: Why did they do this? and, Why were they able to do this?
  3. My two statements regarding mental illness are arguably contradictory, but like you I feel that both of them aren't wrong. What is clear is that any treatment of mental illness, and the role of such illness in mass shootings and other reprehensible crimes can't adequately be addressed in my paper. Not only because of space and relevance, but I don't know nearly enough about it to say anything conclusory. As it is now, I hope not to offend anyone with my characterization of it.
  4. Lastly, there are a few things I would have liked to address more in this paper, among them:
    • Fixing the narrow view I have of law and authority as merely deterrent, especially in relation to Eben's comments this semester and today about how law is the weakest form of social control.
    • Paying no attention whatsoever to the fact that other people commit these horrific acts and have justifications for them that they believe to be larger than themselves (Breivik's motivations among them),
    • My invocation of the capital punishment issue at the end was irrelevant to the first two thirds of the paper, and serves more as an interesting idea to jump off to than the proper conclusion to the argument.

A reaction and response to your essay:

-- By CarlJohnson - 23 Mar 2012

First of all, I think this essay is very well written. Your word choice is careful and describes your ideas with admirable precision, and your tone is sophisticated, but not overly academic. I also like the overall topic of the essay, asking us to move beyond Holmes’s bad man and contemplate the really bad man, for it is an inquiry that leads to the solid points you go on to make, but also can serve as a jumping off point for other ideas.

Stylistically, despite your overall clarity of writing, I think the following passage from the second paragraph could use some revision:

"What influence can a legal system have when the harshest available punishment holds no sway? Any attempt to further describe this state of mind is unlikely to be right, and any ex post facto analysis of such a person will always suffer from the uncertainty of speculation. What can be said is that it most often emerges from something like extreme desperation, even mental illness."

The rhetorical question is nicely stated and introduces a major point that you elaborate later, but the phrase “any attempt to further describe…” confuses me because preceding it you don’t offer any description of the state of mind. The word “further” seems odd. Also, I think you can find a more descriptive word than “right” later in that sentence--perhaps “illuminating” or “comprehensive.” As for the final clause of that sentence, wouldn’t any analysis of such a person always suffer from the uncertainty of speculation? I don’t think that uncertainty is unique to ex post facto analysis, unless you’re suggesting that ex ante the really bad man would actually tell us about his state of mind, or that we could otherwise learn of it with certainty. I think the last sentence of this passage is a point worth making, but you might want to rephrase it after you revise the previous sentence for better flow.

Moving on to substance, I think you’ve made two somewhat contradictory statements about really bad men being mentally ill, but, oddly enough, I actually agree with both of them. The first is, “Behavior so far outside a universal human norm is, by itself, mental illness…” The second is, “To say that they are mentally ill is to rationalize the apparent inability to deal with the really bad man.” Setting aside the brainwashing and heavy narcotics forced upon, say, child-soldiers in parts of Africa, I think it is true that to slaughter innocent people as did the gunman at Virginia Tech, one’s mind must be fundamentally very different than most humans; it must lack a certain moral faculty that most of us have. I think the lack of a pervasive mental faculty without which one cannot be fully functional in society is a reasonable definition of mental illness. For example, it works just fine for cognitive impairments and disorders concerning mood regulation. On the other hand, I also agree that for society to say that an extreme deviant, the really bad man, is mentally ill is to artificially label him as “other,” so that the rest of us can maintain our comfortable definition of “us.” It’s a way for us to reject the reality that the really bad man is one of us, that he is a fellow human, that he is a member of our society.

I think that that labeling of the really bad man as “other,” as mentally ill, is what does the work of, as you say, relieving the pressure on the rest of society, but you argue that it is the blaming of policemen and school administrators that does this work. You say that pointing the finger at people besides the gunman allows us to ignore “more fundamental problems,” like the inability of our legal system to have any effect on the really bad man. I guess that’s true, but even if we admit to that fundamental problem, so what? There’s nothing we can do to fix it. The really bad man, by his very nature, exceeds the reach of the system and is subversive to it. No amount of systemic reform can change that. I think the more interesting insight stemming from our finger pointing lies in the urgent need for us to finger point. I think that urgent need reflects the fact that we are pathologically unable to accept that there is no tangible solution to a problem. Faced with an atrocity such as the massacre at Virginia Tech, we think there must be someone somewhere who dropped the ball and allowed this to happen, there must be a way to prevent this in the future. The sobering reality, though, is that no matter how much we want these atrocities to be explainable and preventable, they simply are not. We cannot rationally explain why the really bad man is as bad as he is, and we cannot prevent him from carrying out these attacks. The most we can do is hope that we don’t cross paths with him at the wrong time.


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r11 - 22 Jan 2013 - 20:10:16 - IanSullivan
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