Truth and Justice

by Mark English

It seems from a slew of documents that have made their way into the public domain over the last year or so that the FBI and the Department of Justice have become unacceptably politicized, allowing political considerations to affect internal decision-making. No doubt there always has been and always will be a degree of politicization within such agencies and departments, but this tendency does seem to have got out of hand in recent years, and it is no surprise that matters are coming to a head. Juridical and law enforcement systems need to be seen to maintain a certain degree of integrity and independence from politics if they are to operate in anything like an effective way.

Certainly, one doesn’t expect a lot of truth and justice in the broader political sphere. Politics is essentially a power game and often a very dirty one at that. So, naturally, to the extent that the legal system finds itself influenced or infiltrated by political players, it loses credibility.

Lawyers I have known have, on the whole, been pretty cynical about the law and sometimes cynical in other ways too. I was shocked as an idealistic young man by the attitude of a highly-regarded progressive lawyer I once consulted. He was not much older than me, but he confided to me in a dismissive kind of way that he had given up entirely on the sort of sincere idealism that he saw (rightly) as lying behind my preoccupations of the time. His public reputation and profile belied his real views and continued to do so as he rose to national prominence.

Charles Baudelaire wrote about the way the giant wings of the albatross, which make it such an elegant creature when aloft, prevent it from walking properly. He was thinking of poets and artists unable to get by in the world of mundane reality, but the simile works just as well for idealists and well-meaning intellectuals who might seek to engage with, or who happen to find themselves caught up in, the alien world of politics – or the law, for that matter. They tend not to thrive. On the other hand, in today’s think-tank infested world, ideologues will often find a lucrative niche.

Rather than talking directly about politics, however, I just want to make a few remarks and observations about the two concepts – both fundamental to an understanding of social and political questions – which I alluded to above: truth and justice. The notions of truth and truthfulness happen to be central to my own view of things; justice not so much. Let me try to explain why.

Life, it seems to me, is deeply and irredeemably unjust, from the womb. Our attempts to “make things right” are worthy, even inspiring. But it is wishful thinking to believe that political or judicial actions can ever have more than a very modest positive effect on the scheme of things; that they can ever right more than a minuscule fraction of the countless wrongs and injustices that surround us on every side. Putting the matter less emotively, I would say that the domain of predicates such as ‘just’ or ‘fair’ is quite constrained and that related or cognate terms like ‘justice’ and ‘fairness’ have very limited applicability.

High-minded intellectuals – who, along with less high-minded intellectuals, were until a century or so ago sponsored almost exclusively by churches or religious organizations – have over the centuries worked out various schemes in which justice does prevail in very significant ways. The only trouble is, these systems – whether one is thinking of the politically-charged apocalyptic literature of Judaism and early Christianity, more sober accounts of divine judgment focused on an individual’s moral choices, or Eastern ideas of karma and reincarnation – do not correspond with reality. As I see it, unless you are committed to such or similar religious notions or at least to the implicit metaphysics of the Natural Law tradition, justice is a problematic concept. Too grand, too ambitious and (in many cases at any rate) not altogether clear.

We have certain instincts that we share with some non-human animals which entail reactions and behaviors that give the appearance of involving a basic, inbuilt sense of fairness or justice, but our developed ideas of justice are heavily mediated by culture and subject to cultural variation.

The current notion of social justice, for example, is clearly culturally determined. It has a peculiar and fascinating history which I may discuss in a future piece. It is also notoriously controversial. Friedrich Hayek rejected the concept of social justice as  nonsense. Justice, as he saw it, is essentially a process and not about engineering some predetermined outcome.  In general terms I go along with this but will not attempt to defend a Hayekian view here.

Of course, in cases where there is common agreement, I’m for justice rather than against it. Who wouldn’t be? But in many cases, it is either impossible to clearly and uncontroversially define or, if it can be clearly defined, it is unattainable.

Truth does not have things stacked against it in quite the same way. Sure, it’s philosophically contentious. But so long as it is understood in an ordinary, everyday, lowercase kind of way, it is quite within reach and attainable much of the time.

I will try to spell this out a little. We often get things right in everyday life in the sense that the claims we make are in accordance with the relevant facts. The cat is in the kitchen. Dinner is served. The coffee is cold. You lied about where you were last night. Such claims, if they are in accordance with the relevant facts, are deemed to be correct or true (it doesn’t really matter which word we use) rather than incorrect/untrue/false. I am just talking about ordinary usage here. Someone accused of lying might deny it by saying: “That’s not true! I was at my grandma’s as I claimed.”

Truthfulness is quite distinct from truth, of course. It is synonymous with honesty and relates to one’s communicative intentions. One is being truthful if one tells it as one sees it, without trying to deceive one’s interlocutor in any way. The facts may be wrong, but it is the intention that counts here. Truthfulness and fallibility are quite compatible.

Truthfulness is inextricably bound up with intellectual integrity. The scientist or historian who fudges her data or distorts the facts is not a real scientist or a real historian. The intellectual or writer who presents the work of others as his own is a fraud and is rightly ostracized.

I have argued that it certainly does make sense to talk of the truth or otherwise of specific claims in the course of everyday life. But truth in its grander or more scientific or scholarly manifestations may be something of an illusion.

Although facts of various kinds may be verified by observation, experimentation, documentation or plausible testimony, how we conceive of facts in the context of scientific research is often determined to a greater or lesser extent by the theoretical framework. Cats and kitchens and coffee and grandmothers are givens within the framework of ordinary natural-language-based conversations. We are using ordinary words in ordinary ways. But when the framework is, say, a scientific theory, and we are moving beyond the normal social framework for which natural language evolved, we need to be more circumspect both in our claims and how we express them. The facts in the context of a scientific theory may be expressed in terms of the theory itself, and so become dependent on that particular conceptual framework (more or less as ordinary facts are dependent on the framework of natural language, social interaction and ordinary life). Do the English words ‘true’ and ‘truth’ carry over into a scientific context? Perhaps. But I don’t think it ever really makes sense to talk of a complex theory as true.

There is a website with the unfortunate name, Why Evolution is True. This just sounds wrong to me, a poor use of English. If ‘evolution’ is taken to refer to a process, then obviously the predicates ‘true’ and ‘false’ cannot apply. They can only apply to claims, beliefs, etc.. Even if the term ‘evolution’ is taken as shorthand for ‘the theory of evolution’ we still have problems. A theory is not a claim; nor is it merely a set of claims. It is a framework within which various claims are made and tested. Can a theory be true? This sort of statement doesn’t really make sense to me. A theory can be good or sound or well-established. Scientific theories are complex objects and they are not set in stone. There will always be modifications in the offing, of one kind or another.

Just as scientific theories are open to being shown to be incomplete or inadequate, so complex narratives purporting to be true accounts may be rejected as such if they are shown to be fictions, i.e. not in accord with certain known facts. But I think it is appropriate to be skeptical about all complex narratives. Inevitably, many quite different stories can be told which fit the known facts, and many more which fit some of the facts.

Much of our social and personal lives is driven by justificatory narratives of one kind or another. Political narratives could be seen as a subset of these: specifically as those justificatory, secular narratives which are shared (or which are designed to be shared) by large numbers of people.

I want to finish up with a few random observations on how antonyms and negation play into this discussion of justice and truth.

Just as the positive rights implicit in social justice are more controversial and contested than negative rights (like liberty), so the concept of justice is (I would suggest) more problematic than the concept of injustice or of a miscarriage of justice. You could argue about whether a person guilty of a crime, for example, ought to be punished in this way or that or punished at all or even blamed. (There might have been extenuating circumstances.) But there would be no disagreement at all about the wrongness of a miscarriage of justice, where a person innocent of a particular crime was convicted for it; or with respect to cases of a broadly similar kind but which do not involve the court system (so that the term miscarriage of justice would not apply). With respect to the latter, I am thinking of situations – not hard to find, it must be said – in which a person is disadvantaged or penalized in some significant way for what is generally accepted as honest and exemplary behavior.

Another point that seems interesting to me here pertains to the linguistic concept of markedness. Markedness phenomena crop up in many linguistic contexts, like grammatical gender, to take an example. Feminine nouns and adjectives often derive and take their core meaning from the unmarked masculine form. (A suffix might be added to signify a feminine noun or adjective.) Markedness also applies to negation. But it seems that certain negations are more uncontroversial and may be clearer than their positive equivalents. This is slightly odd given that the “marked” negative form of an expression (like ‘injustice’) is in a real sense dependent on and derives its meaning from the unmarked positive form (‘justice’). How is it then that cases of injustice can be more readily understood and less controversial than questions of justice? It is as though the semantics is pulling in one direction (making ‘injustice’ the primary term) and morphology and syntax in another.

Note that the two concepts, truth and justice, are not symmetrically related. Truth relates directly to justice. The legal process is designed to uncover the truth of what happened, and perjury is a serious offense. One talks of someone being falsely accused. But justice doesn’t relate directly to questions of truth and falsity. Claims are true or false according entirely to non-justice-related criteria. Justice (or injustice) just doesn’t come into it.

And what of truth and untruth (or falsity)? Is falsity also primary in some sense? Karl Popper – famous for seeking to replace the logical positivist verification principle with a falsification principle – certainly thought so.

Another example I have come across of truth being presented as being more problematic than its opposite is a literary rather than a philosophical one. No doubt there are countless possible examples one could give. This just happens to be one which stuck in my memory.

It comes from the author’s preface to a very controversial book by the literary academic and historian of early French cinema, Maurice Bardèche, Nuremberg ou La terre promise. The book was published in 1948. The épuration légale was still underway. The execution of his friend and brother-in-law, the journalist Robert Brasillach, had politicized Bardèche. But my point here is logical and rhetorical and any discussion of the politics involved will be left for another time.

“I do not know if truth exists,” Bardèche wrote. “Many people have tried by subtle arguments to prove to me that it doesn’t. But I know that lies exist. I know that the systematic distortion of facts is a reality.”

62 Comments »

  1. Couvent,
    I think Brasillach is an interesting subject. For me it’s a mystery how educated and intelligent people like Brasillach (and Drieu La Rochelle etc.) could eagerly jump, head forward, in the trap of antisemitism. Every analysis that explains why they did, is relevant.

    I am torn two ways. My curiosity drives me to seek understanding. I believe in restorative justice. I believe in reformation, forgiveness and rehabilitation. On the other hand is there not a level of evil such that we dare not mitigate it in the slightest by seeking understanding? Are not the apologists for such evil at least as much to blame because they cannot claim exigent circumstances?

    We have entered the age of relativism where evil has been defined out of existence. People are the unfortunate product of their environment. They lack free will and are not truly responsible for their actions. We should not punish but instead seek understanding and rehabilitation. However hatred, bigotry, vileness and evil still exist and the danger is that they will grow to exploit the space that relativism provides.

    The collaborators in France practised relativism. This is the situation they said. We must deal with it and make the best of it. Cooperation can be to our mutual benefit. Expediency can be more important than principle. The Germans want the Jews? OK, why should that get in the way of useful cooperation. After all we don’t really know what is going on. Etc. OK, I know, I am being wise after the event, but one should be wise after the event, unlike the revisionists and apologists.

    There comes a sticking point in life, where you say thus far and no further. You summon up your courage and prepare to lose everything rather than abandon principle. This happens in small ways and large ways. It is known as integrity. Relativism does not have a sticking point.

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  2. Mark: I hope you write the essay. The fact that I thought the example was poorly handled in this case (for some of the reasons raised by EJ) does not mean the personalities in question are not worth a serious examination. If you want to do serious analysis of French postwar fascist thought, I’ll be more than happy to publish it.

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  3. Labunt wrote:

    The collaborators in France practised relativism. This is the situation they said. We must deal with it and make the best of it. Cooperation can be to our mutual benefit. Expediency can be more important than principle. The Germans want the Jews? OK, why should that get in the way of useful cooperation. After all we don’t really know what is going on. Etc. OK, I know, I am being wise after the event, but one should be wise after the event, unlike the revisionists and apologists.

    = = =

    Well. this is beautiful and wise.

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  4. Labnut

    You made a brief and bold attempt to provide a neat conceptual framework which relates justice to truth.

    One point you bring out parallels one of my points: that religion or some form of religious metaphysics is necessary if we are to see our situation as being morally harmonious.

    But I find fault with your logic in one respect…

    “Trust is founded on perceived natural, ethical and transcendent truths. Justice is concerned with failures in trust caused by departures from these truths, and acts to restore our trust.”

    There may be departures from the things our science might claim to be the case or predict. But these failures don’t really have moral relevance or implications in the way you suggest (concerning trust etc.). And the so-called laws of nature which our science tries to capture *can* be trusted. There are no departures from them (by definition!).

    Your more recent comment (about relativism) I may respond to later.

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  5. labnut, Mark,
    “There comes a sticking point in life, where you say thus far and no further. You summon up your courage and prepare to lose everything rather than abandon principle.” I am in complete agreement. If I put my case too strongly or unfairly, please understand where this came from.

    Dan, Mark
    “The fact that I thought the example was poorly handled in this case (for some of the reasons raised by EJ) does not mean the personalities in question are not worth a serious examination.” I am in complete agreement with this as well.

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  6. Mark:

    You say, “As I see it, unless you are committed to such or similar religious notions or at least to the implicit metaphysics of the Natural Law tradition, justice is a problematic concept. Too grand, too ambitious and (in many cases at any rate) not altogether clear.”

    Hobbes for one provided a non-religious form of natural law, one I find very plausible and clear.

    “it is a precept, or general rule of reason: that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war. The first branch of which rule containeth the first and fundamental law of nature, which is: to seek peace and follow it. The second, the sum of the right of nature, which is: by all means we can to defend ourselves.

    From this fundamental law of nature, by which men are commanded to endeavour peace, is derived this second law: that a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men as he would allow other men against himself.”

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  7. Alan

    I like some aspects of Hobbes’s approach (it almost seems like an early form of a game theoretic tit-for-tat strategy) but am uneasy about some of his terminology and uncertain about the soundness of his “state of nature” intuitions/assumptions. I think I would stand by my claim. *Most* natural law approaches at any rate involve metaphysical assumptions which I do not share.

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  8. Mark,
    You made a brief and bold attempt to provide a neat conceptual framework which relates justice to truth.

    My interest in this was sparked by a post by Massimo where he argued that truth was the foundation of the virtues. I found his argument contrived and artificial. I argued in reply that trust was the foundation of all the virtues(he huffily disagreed!). Every act of social significance requires trust. Our cooperative acts as a society are bound together by trust. Trust is what makes cooperation efficient. A society without trust would become hopelessly inefficient because of the elaborate and extensive mechanisms that would be required for checking and enforcement to replace trust

    But how do I know that others can be trusted? How do they know I can be trusted? The answer is that we developed systems of virtue ethics for this end. They signal our trustworthiness. Your practice of the virtues gives me reason to believe you are trustworthy. My virtuous behaviour helps you to believe I am trustworthy. Trust allows social transactions to be conducted dependably and efficiently. The short hand term for this property of people we call integrity.

    Because of its central importance we have developed the means to intuitively assess another person’s integrity from his demeanour and not only his history. We are actually quite good at doing this and can mostly detect integrity from the eyes, the facial muscles, the voice and bearing. We find it difficult to conceal deceit and easy to detect deceit(mostly).

    This is an important reason for social events. They are there to build trust. I want others to believe I am trustworthy and I want to detect the trustworthiness of others. The relaxed setting of social events facilitates this and this is especially true of business lunches and dinners. The accumulation of trust binds our social group.

    The penalties of failing trust are usually severe and the person is marked as a social outcast. This is why we more readily grant trust to those in our social grouping. We benefit from the trust judgements of others. This is also why membership of your social group is so important, so that you can benefit from the group assessment.

    Now we can bring in the concept of truth. Truth is my true knowledge of your intentions. I want to know the truth about you so that I can know that you are trustworthy.

    But if trust is so important it also creates an opportunity for those prepared to exploit it. They are the free-riders who have learned to dissimulate. To hold the free-riders in check we have been forced to introduce other mechanisms and we can collectively call this ‘justice’. Because free-riders have deliberately flouted our trust we need stronger enforcement mechanisms. Consigning that person to the status of a social outcast is not enough.

    But this does not answer your objection. I will do that in another comment. I wanted to expand on why trust is the foundation of all else before considering your objection.

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  9. Mark,
    There may be departures from the things our science might claim to be the case or predict. But these failures don’t really have moral relevance or implications in the way you suggest (concerning trust etc.). And the so-called laws of nature which our science tries to capture *can* be trusted. There are no departures from them (by definition!).

    I fear you may have misunderstood my argument. Let me expand on it.

    Imagine for a moment you live in a rubbery room. Every step you took the floor might rise to meet you, or fall away, or perhaps tilt unpredictably. The windows might move around and every time you tried to open the door it dodged away to another wall. It would be an unlivable world. In fact the world is astonishingly regular and predictable. There is no clear reason why this should be so(unless you happen to believe in God) but we find it to be so and it makes life liveable. More importantly, we trust that it will continue to be so. We trust that the sun will rise tomorrow, that cause and effect will continue to operate reliably. This trust is so strong that we call it belief but it really still is trust. This belief we invest with a quality we call ‘the truth’.

    However, disturbing things still happen from time to time that painfully disturbs this ordered world and what you trusted to happen does not happen. The truth of your beliefs are challenged. Floods, hurricanes, earthquakes, drought, pestilence and disease are all examples of this. Some call this natural evil, as opposed to moral evil, when discussing theodicy, though, like you, I don’t believe this has inherent moral significance, though my response to it has moral significance.

    To understand the relevance of justice to this we must distinguish between restorative justice and retributive justice. Retributive justice is mainly concerned with moral failures of trust. But when natural evil(the bad consequences of nature) happen to us we respond in a different way, with restorative justice. We help our neighbour douse the fire in his house. We help him to recover by giving him a place to stay overnight and we help him to rebuild. We regard it as a matter of justice that others should be protected from natural evil, be restored to a whole state and to enjoy the protections that we have. This is restorative justice in a world of natural evil.

    As I said earlier:
    The perceived truths, that is natural truth, ethical truth and transcendent truth, sustain our trust in life so that we continue to live productively, hopefully and meaningfully in a synergistic society.
    To sum up. We live in a trusting way. Trust is the foundation of our life. Trust is founded on perceived natural, ethical and transcendent truths. Justice is concerned with failures in trust caused by departures from these truths, and acts to restore our trust.

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  10. Mark,
    The épuration légale was still underway

    There is a very interesting parallel between the épuration légale and the Truth and Reconciliation Commission in South Africa.

    Both processes addressed the same kind of problem. There had been a sustained period of conflict, great wrongs had been committed with strongly racial overtones, there was an urgent need for retributive justice and restorative justice. There was also a need to seek reconciliation and unity. The French and South Africans addressed this in very different ways. In France there was a period of savage retribution which was only later mitigated by amnesties. South Africa instead formed a Truth and Reconciliation Commission(the TRC), headed by a churchman(Archbishop Desmond Tutu) with the promise that full disclosure of crimes could earn amnesty.

    The commission was empowered to grant amnesty to those who committed abuses during the apartheid era, as long as the crimes were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty. To avoid victor’s justice, no side was exempt from appearing before the commission. The commission heard reports of human rights violations and considered amnesty applications from all sides, from the apartheid state to the liberation forces, including the African National Congress.

    We feared an immense bloodbath, especially in light of what happened elsewhere in Africa. That did not happen. Instead there was a peaceful and orderly transfer of power, without violence or retribution.

    How was that possible?

    A large part of the answer was the role that the churches played in opposing Apartheid. Archbishop Desmond Tutu of the Anglican Church, Archbishop Dennis Hurley of the Catholic Church, Rev. Alex Boraine of the Methodist Church and Dr Beyers Naude of the Dutch Reformed Church are especially notable. And there were many others. The South African Council of Churches never ceased opposing Apartheid. Consequently the churches were held in high regard and their message of confession, repentance, forgiveness and reconciliation resonated with the general population. There were exceptions of course and there were still vocal calls for vengeance. Another part of the answer was the wisdom of Nelson Mandela, who heeded the calls from the churches. His immense stature among ordinary people gave the TRC considerable weight. His decision to appoint a churchman(Archbishop Desmond Tutu, along with Alex Boraine, to head up the TRC was inspired genius.

    The immediate consequence was that, unlike France, there was no wild period of bloodletting as people evened the scores. Not a single person was executed.

    Immediately following the liberation, France was swept by a wave of executions, public humiliations, assaults and detentions of suspected collaborators, known as the épuration sauvage (wild purge).[2] This period succeeded the German occupational administration but preceded the authority of the French Provisional Government, and consequently lacked any form of institutional justice.[2] Approximately 10,500 were executed, before and after liberation.

    But the longer term consequences are even more startling.

    The Kaplan Centre for Jewish Studies and Research at the University of Cape Town conducted a study: Attitudes and Perceptions of Black South Africans towards Jewish People in March 2017.

    See http://www.kaplancentre.uct.ac.za/kaplancentre/news/A-Study-of-Attitudes-towards-Jews-among-Black-South-Africans

    The study contrasted the attitudes of Blacks to other population groups with their attitudes towards Jews and in the process revealed the attitudes of Blacks towards Whites. The result is astonishing, given our recent history:

    Net favourability rating by Blacks of other population groups (favourable% – unfavourable%)

    66% – Whites
    26% – White foreigners
    11% – Black foreigners
    9% – Muslims
    -4% – Jews
    -9% – Indians

    Of all race groups in South Africa, Whites have the highest favourability rating of 66%.

    How do we explain this altogether surprising result? I am not sure, but it does certainly indicate that the truth and reconciliation process was successful.

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