Comment: Even when we need certainty, justice is gray

Dr Matthew Ashton
Dr Matthew Ashton

Some of the greatest injustices in our history have come from politicians and judges being too certain of themselves. We need to tread carefully after the riots.

By Dr Matthew Ashton

The riots may be officially over but we're still seeing their after effects as those involved are sentenced and politicians start to discuss what went wrong. All week and in this Sunday's papers, politicians from both parties are attempting to make sense of what's happened. David Cameron in the Sunday Express used it as an excuse to attack the European Union's Human Rights Act, while Tony Blair in the Observer claimed that he'd come up with a solution during his last years in power but it hadn't been implemented once he'd left Downing Street. It's not too difficult to guess who this might be a dig at.

With the exception of a few brave politicians who stood up to protest against them, very little was said about some of the incredibly harsh punishments being handed down to those convicted of breaking the law during the riots. This includes the long sentences for stealing comparatively minor items and incitement to violence via the internet. In most of these cases I fully expect them to be revisited at the Court of Appeal once public anger has cooled somewhat. Generally politicians and the media prefer justice to be a black and white issue with the judiciary handing down justice like a pharmacy dispenses pills. They act like justice is an absolute concept when in reality systems of justice are derived from a multitude of sources such as common beliefs, previous laws, religion and the mood of the times. There are as many theories of justice as there are countries in the world and people in them. In short it's a human construct with no concrete existence beyond that which we give it. Terry Pratchett summed it up very well in his Discworld novels when one of his characters argues: "Take the universe and grind it down to the finest powder and sieve it through the finest sieve and then show me one atom of justice, one molecule of mercy. And yet you act like there was some sort of rightness in the universe by which it may be judged." Very rarely do modern politicians acknowledge that justice often has quite a few shades of grey to it, unless of course it involves them personally, at which point they're all too keen to reach for the excuses and the caveats.

What we need in Britain is a proper debate about what we want from our system of justice. Should it be primarily about punishment, deterrence, protection, rehabilitation or all of these things combined? Many great thinkers have argued against excessive punishment while deterrence is problematic for a number of reasons. Research suggests that the length of the sentence is less important than the actual chance of the law catching you. After all, people still download music illegally despite the ever increasing penalties because rightly or wrongly they're fairly sure that the police won't come knocking at their door. The rehabilitation argument has also come under scrutiny in recent years with academics, the police and judges arguing that prisons are breeding grounds for crime. All of these issues should be examined and discussed carefully because you cannot divorce theories of justice from the real world practical concerns. Even if you decided it would be right and just to lock up all wrongdoers for the maximum term permitted by the law you'd quickly run out of space in the prisons, leading to massive expenditures as we built more.

I think most people in Britain would agree that justice ultimately should be about fairness. In addition I'd argue that it should be about transparency. People must be able to see justice at work and understand how and why it reaches the decisions that it does. Far too much of the modern justice system in Britain is still wrapped up in the archaic language of the 19th century. Former Master of the Rolls Lord Denning had the right idea when he attempted to make his judgements easier to understand for the ordinary citizen. Justice should also be about equality and consistency. Several commentators in the press this week have drawn attention to the harsh sentences for the rioters and the relative leniency displayed to MPs and Lords found to have stolen much greater amounts, not to mention the bankers who made millions through legal but morally questionable activities. The British public isn't stupid and such discrepancies just increase the feeling held by many that there is one law for the rich and one for the poor.

In 1952 the famous American Judge Learned Hand tried to define the elusive concept of freedom in his famous speech 'the spirit of liberty'. The line that always resonates with me is: "The spirit of liberty is the spirit which is not too sure it is right." I think this applies to justice as well. Some of the greatest injustices in our history have come from politicians and judges being too certain of themselves. I'm not calling for more doubt and uncertainty here, Britain needs firm leadership, but we do need a greater willingness to question assumptions and the humility to admit when they, and ourselves, might be wrong.

Dr Matthew Ashton is a politics lecturer at Nottingham Trent University. He blogs at -

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