A Passion For Justice: Divine For Some, Purely Human For Others...

"To my mind it is fundamental to our society to see that powers are not abused or misused. If they come into conflict with freedom of an individual or with any other of our fundamental freedoms, then it is the province of the Judge to hold the balance between the competing interests." - Lord Denning

Justice theory is one subsidiary of philosophy that never really suffers a bad century.

Back in Homeric times, life was simpler. Justice largely meant personal vengeance. Complications began when Plato famously pinned on Thrasymachus the view that justice is simply the will of the stronger, and on Glaucon and Callicles the idea that justice is conventional. Plato argued, through his familiar Socratic ventriloquy, that justice is divine, an ideal to which human justice can only haltingly aspire. Aristotle then introduced a formal criterion of justice that still wins the greatest agreement, perhaps because it's merely formal: Treat equals equally and unequals unequally.

From then on, follow the history of philosophers' sentences that begin "Justice is … " on and you hit so many diverse endings you wonder whether anyone, including the lady in the blindfold, knows what justice is.

To Aquinas, it's "a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him." To Hume, it's "nothing but an artificial invention." To Sir Edward Coke, it's "the daughter of the law, for the law bringeth her forth." To 20th-century American jurist Learned Hand, it's "the tolerable accommodation of the conflicting interests of society." Do a survey, and about the only thinker who invites instant agreement is Belgian philosopher of law Chaim Perelman. According to Perelman, justice is simply "a confused concept."

One reason theories of justice abound is the range of the concept, applied to decisions, people, procedures, laws, actions, events. Justice is usually considered a positive thing, yet some rank it below mercy. It's divine for some, purely human for others. It's supposedly majestic, yet many complain of its quotidian banality and everyday scarcity. Recall the old lawyer's joke:

Petitioner: "Justice, justice, I demand justice!"

Judge: "Silence or I'll have you removed! This is a court of law!"

When Rawls declared justice "the first virtue of social institutions, as truth is of systems of thought," and began his painstaking probe of the conditions of just institutions, he re-established a modern tradition dating back to Hobbes: using social-contract theory to articulate ideal forms of social justice, sometimes in quasi-syllogistic form. But there was also a longstanding, skeptical, antisystematic tradition in justice theory.

Solomon wrote in A Passion for Justice that justice is "a complex set of passions to be cultivated, not an abstract set of principles to be formulated. … Justice begins with compassion and caring, not principles or opinions, but it also involves, right from the start, such 'negative' emotions as envy, jealousy, indignation, anger, and resentment, a keen sense of having been personally cheated or neglected, and the desire to get even." In time, suggested Solomon, "the sense of justice emerges as a generalization and, eventually, a rationalization of a personal sense of injustice."

Might our concept of justice arise when society's normal moral inertia, the tendency to accept traditions and status quo ethical procedures without challenge, is itself challenged?

Economist and philosopher, Amartya Sen inclines to that view. He begins An Idea of Justice by quoting Pip in Charles Dickens's Great Expectations:

"In the little world in which children have their existence, there is nothing so finely perceived and finely felt, as injustice." Sen adds, "The identification of redressable injustice is not only what animates us to think about justice and injustice, it is also central … to the theory of justice."

"Justice is ultimately connected with the way people's lives go, and not merely with the nature of institutions surrounding them." Two concepts from early Indian jurisprudence, niti (strict organizational and behavioral rules of justice) and nyaya (the larger picture of how such rules affect ordinary lives), provide a better prism for justice than Rawls's obsession with the characterization of just institutions. Indeed, Sen writes in a killer sum-up:

"If a theory of justice is to guide reasoned choice of policies, strategies, or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient."

It was Solomon, in A Passion for Justice, who voiced the problem that hangs over ostensibly rigorous justice theory, which Sen plainly finds unconvincing yet never quite denounces. Speaking of the enormous technical literature spawned by Rawls, Nozick, and their acolytes, Solomon wrote:

"The positions have been drawn, defined, refined, and redefined again. The qualifications have been qualified, the objections answered and answered again with more objections, and the ramifications further ramified. … But the hope for a single, neutral, rational position has been thwarted every time." Solomon complained that justice theory had "become so specialized and so academic and so utterly unreadable that it has become just another intellectual puzzle, a conceptual Gordian knot awaiting its academic Alexander."

Will Amartya Sen be that Alexander? In repeatedly bringing back into the discussion Adam Smith's Theory of Moral Sentiments, Sen signals the need for justice theory to reconnect to realistic human psychology, not the phony formal rationalism that infects modern economics or the for-sake-of-argument altruism that anchors Rawls's project. (In A Theory of Justice, Rawls writes that in his well-ordered society, "Everyone is presumed to act justly.") By declaring his desire "to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice," Sen sinks a knife into the heart of the latter utopian program.

On the other hand, Sen's own understanding of his aim in The Idea of Justice hardly dismisses formal resources or careful reasoning. He cites an alternative tradition to social-contract theory, one he identifies as extending from Smith to Mill and beyond and characterizes as "comparative" in its measuring of the justice actually experienced by individuals. That countertradition issued, Sen explains, in the "analytical—and rather mathematical—discipline of social-choice theory" developed by Kenneth Arrow in the mid-20th century.

"Reasoning," writes Sen early on, "is a robust source of hope and confidence in a world darkened by murky deeds." In The Idea of Justice, Amartya Sen provides us with a stunning model despite his eternally ambiguous and imperfectible subject. As he so winningly adds, "The remedy for bad reasoning is better reasoning."

- Carlin Romano, ("Amartya Sen Shakes Up Justice Theory," The Chronicle Review, 9.14.09. Image: "Blind Justice", Playboy Magazine Illustration, 1980s).

The Conscience Of Humanity: And Justice For All....

"Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice." -Alexander Solzhenitsyn (1970).

Image: -Mr. Fish ("Doing Nothing," Truthdig.com, 4.19.2009).

11 Reasons Why Bernard Madoff aka "The Swindler" Is America's Unconscious Superhero

“In today’s regulatory environment, it’s virtually impossible to violate rules.” -Bernard Madoff (2007).

The Inadvertent Hand of Justice:

While it is understandable that the super-rich and wealthy, who have lost a large portion of their retirement and investment funds are unanimous in their condemnation and cries of betrayal of trust, and the editorials of all the prestigious newspapers and weeklies have joined the chorus of moral critics, there is much to praise in Madoff’s deeds, even if such praise was not at the heart of his fraudulent endeavor.

1. The swindle of $50 plus billion dollars may make a big dent on US Zionist funding of illegal Israeli colonial settlements in the Occupied Territories, lessen funding for AIPAC’s purchase of Congressional influence and financing of propaganda campaigns in favor of a pre-emptive US military attack against Iran. Most investors will have to lower or eliminate their purchase of Israel bonds, which subsidize the Jewish State’s military budget.

2. The swindle has further discredited the highly speculative hedge funds already reeling from massive withdrawals because of deep losses. Madoff’s funds were one of the last ‘respected’ operations still drawing new investors, but with the latest revelations it may accelerate their demise. The dismissed promoters may finally have to perform an honest, productive day’s work.

3. Madoff’s long-term, large-scale fraud was not detected by the Securities and Exchange Commission (SEC) despite its claims of at least two investigations. As a result, there is a total loss of credibility. More generally, the SEC’s failure demonstrates the incapacity of capitalist government regulatory agencies to detect mega frauds. This failure raises the question of whether alternatives to investing in Wall Street are better suited to protect savings and pension funds.

4. Madoff’s long-term association with NASDAQ, including his chairmanship, while he was defrauding his clients of billions, strongly suggests that the members and leaders of this stock exchange are incapable of recognizing a crook, and are prone to overlook felonious behavior of ‘one of their own’. In other words, the investing public can no longer look to holders of high posts in NASDAQ as a sign of probity. After Madoff, it may signal time to look for a king-size mattress for safe keeping of what remains of a family’s wealth.

5. The investment advisors from top banks in Europe, Asia and the US managing billions of funds did not carry out the most elementary due diligence of Madoff’s operation. Apart from severe bank losses, tens of thousands of influential, affluent and super-rich lost their entire accumulated wealth. The result is total loss of confidence in the leading banks and financial instruments as well as the general discrediting of ‘expert knowledge’. The result is a weakening of the financial stranglehold over investor behavior and the demise of an important sector of the parasitic ‘rentier’ class, which gains without producing any useful commodities or providing needed services.

6. Since most of the money stolen by Madoff came from the upper classes around the world, his behavior has reduced inequalities – he is the ‘greatest leveler’ since the introduction of the progressive income tax. By ruining billionaires and bankrupting millionaires, Madoff has lessened their capacity to use their wealth to influence politicians in their favor – thus increasing the potential political influence of the less affluent sectors of class society…and inadvertently strengthening democracy against the financial oligarchs.

7. By swindling life-long friends, self-same ethno-religious investors, narrow ethnically defined country club members and close family members, Madoff demonstrates that finance capital shows no respect for any of the pieties of everyday life: Great and small, holy and profane, all are subordinated to the rule of capital.


8. Among the many ruined investors in New York and New England, there are a number of mega slumlords (real estate moguls), sweatshop owners (fancy name-brand clothes and toy manufacturers) and others who barely paid the minimum wage to their women and immigrant laborers, evicted poor tenants and swindled employees out of their pensions before moving their operations to China. In other words, Madoff’s swindle was a kind of secular ‘divine’ retribution for past and present crimes against labor and the poor. Needless to say, this ‘unconscious Robin Hood’ did not redistribute the money fleeced from the employers to their workers, he reinvested part of it in charities which enhanced his philanthropic image and to payout to some of his early investors so sustain the overall Ponzi scam.

9. Madoff struck a severe blow against anti-Semites who claim that there is a ‘close-knit Jewish conspiracy to defraud the Gentiles’, laying that canard to rest once and for all. Among Bernard Madoff’s principle victims were his closest Jewish friends and colleagues, people who shared Seder meals and frequented the same upscale temples in Long Island and Palm Beach.

Bernie was discriminating in accepting clients, but it was on the basis of their wealth and not their national origin, race, religion or sexual preference. He was very ecumenical and a strong backer of globalization. There was nothing ethnocentric about Madoff: He defrauded the Anglo-Chinese bank HSBC of $1 billion dollars and several billions from the Dutch arm of the Belgian bank Fortes. $1.4 billion was from the Royal Bank of Scotland, the French bank BNP Paribas, the Spanish bank, Banco Santander, the Japanese Nomura; not to mention hedge funds in London and the US, which have admitted holdings in Bernard Madoff Investment Securities. Indeed Bernie was emblematic of the modern up-to-date, politically correct, multicultural, international…swindler. The ease with which the super rich of Europe forked their fortunes over caused one Madrid-based business consultant to observe that, “picking off Spain’s wealthiest was like clubbing seals…” (Financial Times, December 18, 2008 p.16)

10. Madoff’s swindle will likely promote greater self-criticism and a more distrustful attitude toward other potential confidence people posing as reliable financial know-it-alls. Among self-critical Jews, they are less likely to confide in brokers simply because they are zealous backers of Israel and generous contributors to Zionist fund drives. That is no longer an adequate guarantee of ethical behavior and a certificate of good conduct. In fact it may raise suspicion of brokers who are excessively ardent boosters of Israel and promise consistent high returns to local Zionist affiliates – asking themselves whether this business about ‘what is good for the …’ is really a cover for another scam.

11. The demise of Madoff’s enterprise and his wealthy liberal Jewish victims will adversely affect contributions to the 52 Major Jewish American Organizations, numerous foundations in Boston, Los Angeles, New York and elsewhere, as well as the Clinton/Schumer militarist wing of the Democratic Party (Madoff bankrolled both of them as well as other unconditional Congressional supporters of Israel). This may open Congress to greater debate on Middle East policy without the usual high volume attacks.

Conclusion:

Madoff’s swindle and fraudulent behavior is not the result of a personal moral failure. It is the product of a systemic imperative and the economic culture, which informs the highest circles of our class structure. The paper economy, hedge funds and all the ‘sophisticated financial instruments’ are all ‘Ponzi schemes’ – they are not based on producing and selling goods and services. They are financial bets on future financial paper growth based on securing future buyers to pay off earlier cash ins.

The ‘failure’ of the SEC is totally predictable and systemic: The regulators are selected from the regulatees, are beholden to them and defer to their judgments, claims and audit sheets. They are structured to ‘miss the signs’ and to avoid ‘over-regulating’ their financial superiors. Madoff operated in a milieu of a Wall Street where everything goes, where impunity for mega-bailouts for mega swindlers is the norm. As an individual swindler, he out-defrauded some of his bigger institutional competitors on the Street. The whole system of rewards and prestige goes to those best able to juggle the books, to cover the paper trails and who have willing victims begging to get fleeced. What a mensch, this Madoff!

In a few days, one individual, Bernard Madoff, has struck a bigger blow against global financial capital, Wall Street and the US Zionist Lobby/Israel-First Agenda than the entire US and European left combined over the past half century! He has been more successful in reducing vast wealth disparities in New York than all the white, black, Christian and Jewish, reform and mainline Democratic and Republican governors and Mayors over the past two centuries.

Some right-wing conspiracy theorists are claiming that Bernie is a secret Islamic-Palestinian agent (from Hamas) who set out to deliberately undermine the financial base of the Jewish State of Israel and its most powerful, affluent and generous US backers and foundations. Others claim that he is a closet Marxist whose swindles were carefully designed to discredit Wall Street and to funnel billions into clandestine radical organizations – after all…does anyone know where the lost billions have gone? Unlike the leftist pundits, bloggers and protest marchers, whose earnest and public activities have had no effect on the rich and powerful, Madoff has aimed his blows where it hurts the most: Their mega-bank accounts, their confidence in the
capitalist system, their self-esteem and, yes, even their cardiac well-being.

Does that mean we on the left should form a Bernie Madoff Defense Committee and call for a bailout in line with Paulson’s bailout of his Citibank cronies? Should we proclaim “Equal bailout for equal swindlers!”? Should we advocate his flight (or his right of return) to Israel to avoid a trial? It might not fly with his many Jewish victims to make the case for an Israeli retirement for Bernie.

There is no reason to mount the barricades for Bernard Madoff. It’s enough to recognize that he has inadvertently rendered an historic service to popular justice by undermining some of the financial props of a class-ridden injustice system.
-James Petras (Excerpt: "Bernard Madoff: Wall Street Swindler Strikes Powerful Blows for Social Justice", Information Clearinghouse, 12.20.2008. Image: -VioletPlanet, The Hero Factory, 2.26.09).

The Legacy Of Justice: Forget It, Roman, It's Chinatown....

Evelyn Mulwray: What were you doing there?

Jake Gittes: Working for the District Attorney.

Evelyn Mulwray: Doing what?

Jake Gittes: As little as possible.

Evelyn Mulwray: The District Attorney gives his men advice like that?

Jake Gittes: They do in Chinatown.
-Robert Towne ("Chinatown," directed by Roman Polanski, 1974).

There are, I believe, two kinds of people when it comes to crime and punishment. There are those who understand that we are a nation of laws, and that our system does not serve vengeance but justice. And those who are like something out of the Old Testament, eye for an eye righteous fumers whose philosophies on justice sound like something out of the most regressive, brutal and cruel sharia law. I like to divide these groups into educated and ignorant.

These groups stand in stark contrast on the matter of Roman Polanski, and the two classifications - educated and ignorant - become more obvious when you look at Polanski's case. The ignorant believe that Polanski should be serving life in prison or have been castrated or something equally harsh, and they are operating under the knowledge-free belief that the Polish filmmaker never faced justice in the matter of his rape of a 13- year old girl. The educated know better; they know that Polanski pleaded guilty (which is why he never went before a jury - when you plead guilty you skip the whole trial process, which exists to determine innocence or guilt) and that he served time in Chino under psychiatric supervision as part of his plea bargain.

What the ignorant don't know - and they would know all of this if they had watched the excellent, fascinating (and directed by a woman) documentary Roman Polanski: Wanted and Desired (DVD release 1. 27.09) - is that the judge in the case, a notorious showboater, decided to renege on the deal and wanted to send Polanski to jail for up to 50 years, a sentence even the prosecutor and Polanski's victim felt was too harsh. It was this aspect of the case - an out of control judge seeking media attention by meteing out an obviously unfair sentence - that drove Polanski to flee America, never again to return.

In Wanted and Desired prosecutor Roger Gunson goes on the record saying that the judge acted inappropriately, and the film makes the case that further attempts to get the Polanski case cleared up ran afoul of more publicity hounding - another judge said that Polanski could come back to America for a hearing only if it was televised.

And now this streak of cruel attention-seeking continues, says the victim in the case. Samantha Geimer has called for the charges against Polanski to be dropped. From a wire services story:

"I was the 13-year-old girl Roman Polanski took advantage of on March 10, 1977, wrote Samantha Geimer, now a 45-year old mother of three. "I have urged that this matter come to a formal legal end. I have urged that the district attorney and the court dismiss these charges." True as they may be, the continued publication of those details causes harm to me, my beloved husband, my three children and my mother. I have become a victim of the actions of the district attorney," she wrote in a brief filed with the court.

Geimer continued: "My position is absolutely clear. Let us deal with the harm and continued harm that the pendency of this matter visits upon me and my family, and waive the legal niceties away, and cause it to be dismissed." ( Note: Geimer has volunteered to come and speak at the upcoming January 21st hearing).

At this point is there any question that the DA in this matter is simply trying to score political points? When even the victim is asking that this endless case be closed so that she can move on with her life?

The truth is that the case of Roman Polanski is a complicated one. Yes, he was wrong for what he did. Yes, he deserved punishment. But he went through all the legal steps required of him, did everything ordered by the court, up until the point when the court decided to scrap the agreement.

There's something Kafkaesque about Polanski's story, and this aspect is one that the American media ignores time and again. Whether or not you agree with the plea bargain deal, it was reached fairly and legally. Polanski committed a crime and he worked out a deal to pay his dues. He was then wronged when the deal was ignored. The case is filled with shades of gray that infuriate Americans, especially when it comes to sex crimes. Polanski can be wrong and yet, at the same time, wronged. Our system is set up to provide as much fairness as possible and despite the beliefs of the ignorant Old Testamenters, your rights don't suddenly evaporate when you plead guilty. You're not supposed to be subject to the extralegal whims of a judge. There's supposed to be accountability.

Hopefully we're closer to this whole matter being solved. Will Polanski ever come back to America should the charges be dropped? Hard to say. There are enough knuckle-heads out there that I guarantee any event at which Polanski appears will be picketed. I'm not sure it's worth it for him anymore, except to prove a point. Maybe it's a point that needs to be proven.

-Devin Faraci ("The Curious Case of Roman Polanski," The Devin's Advocate, 1.13.09. Image: -Roman Polanski, "The Tenant," directed by Roman Polanski, 1976 ).