Coordinating Vertical and Lateral Justice

Philosophy Forums Society, Government, and Economics
1

Issue at Hand:
foxnews.com/world/2014/05/06 … =obnetwork

Context:
Woman had a affair in Indonesia, was gang-raped for it, and now has to be cained for adultery, as the court system doesn’t recognize the gang rape as sanctioned punishment.

Instead, it is considering the rape as separate, and is putting the guys who raped her on trial for rape, while noting officially she hasnt been punished for the adultery by the court.
Opening:
In the court’s eyes:
A) She committed Adultery and has never been disciplined
B) A group of young men raped a married woman, clearly outside of the scope of law.
B2) If the men admit to raping her for Adultery, I’m guessing they will be in deeper shit giving they did so usurping the court’s authority.

Notice they get a B2 addition, but she has no A2.

I am not discussing the legitimacy of Shariah Law or Corporal Punishment here, but the remarkable inability of court systems worldwide (hell, even mods here) in being able to deduce from a situation sufficient trauma has already been applied to the defendant, inside or outside of the court system… and that processing the cases independent or without reference to one another can lead to absurdities and unhumane conditions well beyond the intended scope of the punishment under normal conditions. From the point of view of the individual, it is all part of a larger system that excessively punishes them… a double punishment, and thus alienates them from any behavioral benefit they would otherwise be expected to receive.

A example that is Hypothetical:
It is against the law to steal, steal and you loose a hand. Do it twice, you loose a second hand. Third time, your head.

A kid steals, is caught, and before being brought to a police officer, the merchant cleaves a hand off.

Police show up, hearing the screaming, arrest both the boy and the merchant. Merchant is sentenced for mutilating another person, as per the law. The boy, the judge notes, was never tried or sentenced for his crimes, and so, sentences the boy to have a hand chopped off.

Boy looses both hands, and dies soon afterwards from starvation, due to his inability to earn a living.

The boy achieves the punishment meant for three punishments… lost of both hands and life, for a single offense. What is worst, given the expected non-lethality of a generic one handed first punishment, he was denied his capacity to reform.

The situation for the hypothetical boy was more extreme than this woman, but it simplifies my point.

End Argument:

Court Systems should recognize a diagnostic logic that analyzes the expected Prognosis of a defendant as a mitigating factor. Extreme hardship and duress of the defendant, however guilty, should be considered as a aspect of the sentencing, especially in cases where the death penalty isnt the judgment… a person who lives past the sentencing and serves to completion their time or penalty needs to be reintegrated back into the community.

Part of the task of doing this is considering the role of the court is having in producing a culminating effect on the defendant. Are they the sole dog in that race, or are other groups, legitimately or not, having a hand (no pun intended) in this as well? As the are part of the calculas, the end product is effected.

Therefore, the inability of a court to consider mitigating factors in pursuing justice, and the unwillingness of courts to consider the competition of other factors of coercive force, considering and integrating actions already taken and obviously to be taken, vertically from other sectors of government, or laterally from other sectors of society, sanctioned or not, fails in the pursuit of judgment.

It is my presumption, from this analysis, the the Islamic Court has failed, due to it’s inability to properly function on a synergistic basis in properly investigating the claims of the case, and making sure the person on trial is one and the same as the person who committed the crime, and incompetency in carrying through the Hadith.

Clearly, a Rape Victim is NOT the person who willfully committed Adultery, as that person no longer exists. She is currently incapable of competently sitting trial, as the guilty aspect has been brutalized beyond sanity. Instead, you have a victim incapable of being punished to to infirmity of mind due to a recent traumatic event.

A Imam would know this, as he isnt a idiot ignorant of the workings of the soul, or how men live.

Overview and Reinforcing Moral:

This isn’t a case unique to Sharia law, it exists in all court systems, in some form or another, due to inadequacies in the methods and awareness inherent in the pursuit of judgment. Justice isn’t just unless aspects such as this is considered.

2

I was under the impression (mostly thanks to T.V.) that the sentencing phase of the U.S. criminal justice system already takes things like this into consideration. Aren’t “They learned their lesson” and 'look at how they suffered for their crimes" considerations when deciding a sentence?

3

A thought:

As you said, the court punishes people for taking the law into their own hands. If the law then punishes the person for their actions, regardless of punishments by others, does that allow the law to keep the ultimate authority. Part of the punishment on the third party is because it undermines the law. A way to get it back is to have punishment be dealt by the government anyway.

A less extreme example: smoking is banned in public places like restaurants. A person lights up anyway, perhaps in protest, and his pipe is knocked out of his hands by a customer and smashed. Pipe can reach large prices, this is the one on my dream list, at a price of $657.00. The law only hand out a fine of $1000.00, and though the customer is punished for the destruction of the pipe, probably with a fine not given to the smoker, the law gives out the fine anyway. With it’s action it is saying, one, you cannot take the law into your own hands, and in emphasise, two, the punishment for an action lays with us.

One of the things that has stuck with me that I want to say, Martin Luther King Jr said, “Breaking an unjust law and accepting the punishment shows the injustice of the law while honoring the necessity for law.” (note, I don’t know that he said it, or that he said it that way. I may be paraphrasing, and I cannot find it on the internets, but my Googlefu is weak and who the hell trusts the internets for quotes.) The intention of the statement has stuck with me. It might be important for the law to say, they cannot punish you, only we can punish you.

4

Not necessarily in federal court. There are strict rules for certain crimes. Drugs, for example.

5

That’s true, minimum sentencing is becoming more and more popular. Contra’s position would be a downside to that.

6

I like to think my position would take effect prior to sentencing all together… the vertical in a anglo-saxon court system (government) has alot of lateral check and balances in it that the court system does recognize. This stuff should be considered PRIOR to the Grand Jury phase, as the charge being brought forward has a limited statutory range of punishments… but thats for criminal cases with a jury, we have other systems in place, such as plea bargaining, or when jury is waved, and extradition issues… in civil cases arbitration where it is judged after.

Islamic Jurisprudence is similar to common law, so parallels exist. Its in Xeer law, or old, old Anglo-Saxon Law where kin were expected to pay blood money is when my position begins to degrade, as justice ceases to focus on the individuals guilt, but rather is applied and implied, rightly or wrongly, on the clan level. You need a Romeo and Juliet to break up the Hatfield and McCoy style feuds… but the exceptions in that system proves my rule… prior to a marriage alliance, they just want each other dead (community wide death sentence stuck in a piecemeal stalemate)… but once they get together… they realize they have to live together… and so the feud ironically collapses…

Our court system, and similar ones, are designed to be more robust and smarter than such systems, overcoming tribal features… but can preserve barbaric functions long after even the most dead set of clans would of sought peace and become friends.

7

I like to think my position would take effect prior to sentencing all together… the vertical in a anglo-saxon court system (government) has alot of lateral check and balances in it that the court system does recognize. This stuff should be considered PRIOR to the Grand Jury phase, as the charge being brought forward has a limited statutory range of punishments… but thats for criminal cases with a jury, we have other systems in place, such as plea bargaining, or when jury is waved, and extradition issues… in civil cases arbitration where it is judged after.

Islamic Jurisprudence is similar to common law, so parallels exist. Its in Xeer law, or old, old Anglo-Saxon Law where kin were expected to pay blood money is when my position begins to degrade, as justice ceases to focus on the individuals guilt, but rather is applied and implied, rightly or wrongly, on the clan level. You need a Romeo and Juliet to break up the Hatfield and McCoy style feuds… but the exceptions in that system proves my rule… prior to a marriage alliance, they just want each other dead (community wide death sentence stuck in a piecemeal stalemate)… but once they get together… they realize they have to live together… and so the feud ironically collapses…

Our court system, and similar ones, are designed to be more robust and smarter than such systems, overcoming tribal features… but can preserve barbaric functions long after even the most dead set of clans would of sought peace and become friends.