On November 19th, roughly two-and-a-half weeks after his trial began, Kyle Rittenhouse was acquitted of all charges levied against him for killing two people; after twenty-seven hours of deliberation across four days, the jury decided that Rittenhouse’s claims to self-defense were justified and thereby legally absolved him of his responsibility for the deaths. While some might have been surprised by the verdict, legal experts generally were not; as The Prindle Post’s own Benjamin Rossi explains, the facts of the case — when set apart from the many, many partisan performances flashing around this trial — led to a relatively plain judgment, given the relevant laws in question: “…certainly in a procedural sense, and at least partially in a substantive sense, the verdict itself was not a miscarriage of justice.”
The kid was attacked. The attackers were stooooopid because the kid was carrying a great big gun. The attackers got shot. Stupidity kills. Defund stupidity now.
But, if I can briefly evoke Socrates before Thrasymachus here, what is ‘justice,’ anyway?
Who gives a fuck? We know what the Law is. You can shoot a guy who is attacking you if you fear for your life. One reason you may fear for your life is coz you are carrying a great big gun. Guys who want to take away your gun may want to shoot you with it. So you shoot them because they are clearly too fucking stupid to understand verbal warnings.
To listen to much of the commentary following the wake of the Rittenhouse verdict, ‘justice’ is a matter of careful adherence to the regulations of the justice system, with the understanding that said institution has been carefully crafted in a way that produces just results.
Some may have said, stupid cunts who get shot coz they attack a guy with a great big gun get their 'just deserts'. But others may not. What we agree on is that it would not have been lawful to punish the kid.
This is, I take it, what we mean when we refer to justice in a “procedural sense” —
Nope. We are speaking of what is lawful, not what is just. The Law may provide a civil remedy but, self defense, in this context, involved a legal immunity of a Hohfeldian type.
it indicates that the processes and procedures undertaken to render the verdict were proper, so we can therefore be confident that the defendant’s rights and interests were protected throughout the trial.
We don't know that but it is a justiciable matter iff some party has locus standi and objects to the outcome.
Insofar as those defendant-protecting processes constitute the “due process” owed and doled out fairly to all accused people in the system, then, this view of justice focuses on the arrangement of the institution and the technical application of its mechanisms to determine whether or not justice has been done.
There is 'due process of law'. There is no 'due process of Justice'. The law aims at Just outcomes and has its own maxims or theories of what these would look like. There may be a 'check-list' or algorithm to determine if due processes of law have been observed. But no such thing obtains with respect to Justice. We don't know what its 'due processes' are. Some jurisdictions would distinguish between equitable and common law remedies in this context for this very reason. Judges may be able to vary a decision on equitable or public interest considerations depending on what is customary in that jurisdiction.
This is markedly different, though, from the broader, perhaps more philosophical (or at least less-technical), sense of ‘justice’ as the realization of a just society or world filled with people who behave and are treated well, all things considered.
D'uh! No judging is needed in a just society. But a just society may lack certain mechanisms which make it more vulnerable to invasion or internal subversion. That may be why none can now be found.
To be concerned about ‘justice’ as a matter of promoting a flourishing community filled with well-respected individuals is
stooooopid. Why not be concerned about everybody being able to fly by flapping their arms? Come to think of it, the Maharishi made billions by claiming to teach people how to levitate. Sen's little fraud is small potatoes by comparison.
far more complicated than merely maintaining a focus on the operations of particular social institutions (like the legal system), but it is, arguably, what we actually care about at the end of the day.
I really do care about living for ever and being able to fly around the place like Superman. But, at the end of the day, I'm going to die like everybody else. I may care about bequeathing a little wealth to my next of kin or I may hope my nation may preserve its liberties or that my religion will continue to flourish after I'm gone- but once I'm dead, even those concerns will disappear.
This distinction between an “arrangement-focused” and a “realization-focused” view of justice plays a key role in the work of philosopher, economist, and Nobel-prize winner Amartya Sen; calling the former niti and the latter nyaya,
Sen was and is a cretin. Niti means policy. A Neta is a leader who implements policy. This is the Executive function. Nyaya means Justice. A Nyayaadesh is a Judge. A Nyayalaya means a Court. Never in the entire history of Sanskrit or any other Indian language has Niti meant Justice. Perhaps, that deracinated old fool confused the word 'Niti' with 'Niyam' (a Rule or Observance). Several Indian languages have a saying that 'Nyaya is bigger than Niyam- i.e. Justice isn't just about following the Rules'. But no Indian language has ever said that 'Niti' is connected to 'Nyaya'. A good policy would not cause any contention. It would reduce recourse to the Law Courts. Indeed, Coasian 'mechanism design' has this result as Ronald Coase himself said. The 'Law & Econ' approach seeks to minimize money being wasted on lawyers and tussles before the Bench.
Sen was probably accused of breaking 'Niyam' because he ran away with his best friend's wife. He may have felt that the outcome was good though no doubt hurt was caused to the eloping couple's spouses. Thus, it was 'just' that both obeyed the command of Cupid. But, from the point of view of 'Niti', Sen's conduct was not good. It is impolitic to betray both your wife and your friend even if your lover can better advance your career. People won't believe you really are a 'Mother Theresa of Econ'. They will think you are a rogue on the make.
Sen's having to leave India meant he was never actually involved in making 'Niti' or Economic Policy. But, since his first paper was published in 'Artha-Nitia' (Economic Policy) he knew that Niti had always meant policy which is implemented by 'Mantris' (Ministers).
In contrast, Justice has always been wholly independent of Policy. The same is true of the Anglo-Saxon world. The Judicial function is separate and independent of the Executive function which may or may not be separated from the Legislative function.
Sen points out that both of these are key concepts for socio-political theorists to consider, but that the latter should hold a priority.
This is crazy shit. The vast majority should be deciding or implementing policy within their own area of competence or authority. Very few contentious matters should be brought before a judge. Even then, what is most important is that the judgment be as predictable and as speedy and transparent as possible. Also judgments- unlike philosophical debates- need to be 'buck stopped'- i.e. there is a final authority which decides one way or another and thus prevents a 'tie' or 'deadlock' or an infinite regress of argumentation.
Both niti and nyaya are classical Sanskrit terms for ‘justice,’
This is a stupid lie. Sanskrit has a 'pragmatic' hermeneutic. The word for meaning is 'artha' which is also the word for 'economics'. Tamil Brahmins like me use the word 'vaarthe' for 'word'. Varta is the word for commerce. In other words, the meaning of a word is its 'cash value'. Sen is ignorant of all this. He does not know Sanskrit. He has zero knowledge of Brahminical literature. But he is also ignorant of notions like 'yukti' which arise in his own ancestral Ayurvedic profession.
Sen may as well have told his Indian readers 'In America, the term 'wigwam' means procedural incest. 'Tomahawk' means getting transcendentally fucked in the ass by your retarded Uncle'.
but niti focuses primarily on technical applications of “organizational propriety”
India actually has a Niti Aayog which replaced the Planning Commission. It advises on Economic policy. India also has a Uchattama Nyayalaya- a Supreme Court. The latter may be concerned with 'organizational propriety' just as an American Court may decide whether a particular organization in its jurisdiction has acted properly.
while nyaya is the more comprehensive concept upon which a “just society” can be recognized;
Sheer nonsense! I may have a concept of an angel who appears like a human being. This does not give me any means of recognizing an angel. Having a concept of a g.f who will love you and not fuck your retarded Uncle, does not mean you can recognize any such lady. You learn this the hard way once every girl you ever bring home ends up humping Uncle under the dinner table while Mum and Dad try to distract you by asking how your career in Accountancy is going. I'm not saying this is what happened to me. Indeed, it's the sort of thing which has probably happened to everyone at least two or three times.
so, in The Idea of Justice, Sen argues that “the roles of institutions, rules and organization, important as they are, have to be assessed in the broader and more inclusive perspective of nyaya, which is inescapably linked with the world that actually emerges, not just the institutions or rules we happen to have.”
Nobody has to assess shit. There is little point doing so. Only a cretin would say- 'Britain has a pretty good National Health System, but the fact is, Brits die same as Americans. Thus the NHS is a failure.'
The fact is the world which actually emerges depends on the world that existed in the previous time period. Even if all the institutions changed meanwhile, there is likely to be little difference. The other problem is that it will only be with considerable hindsight that we can judge whether an institutional change made things better on the whole, or a lot fucking worse. There was a time when some Economists though Chavez was turning Venezuela into a paradise.
Consider, for example, another imaginary case of Brian the 17-year-old who has been forced to regularly steal from his local grocery store to provide food for himself and his younger sister after his parents were hospitalized in a car accident. Knowing that thievery is illegal,
But it has ceased to be so in some parts of America. The kid won't be arrested if he steals because the value of the theft would be too low.
we might simply conclude that Brian is a criminal and charge him accordingly;
the police will only do so if that is police policy or what the D.A has stipulated. But police policy can be altered.
the hunger felt by Brian and his sister is regrettable, but it is well outside the scope of what niti is designed to care about.
No. It lies within the scope of niti- i.e. police policy. In Italy, a homeless guy was arrested for stealing a bit of cheese and sausage. The case wound up in the Supreme Court which ruled the guy was innocent. This was a case where police policy was stoooooopid. Society had lost tens of thousands of Euros prosecuting a case with a value of less than 5 Euros.
If you would hesitate to charge Brian with a crime, or even harbor a desire to see that the court system treat him with leniency, given the mitigating circumstances, then this likely stems from your desire to see nyaya (rather than just niti) upheld:
No. It is not good policy to do stooooooopid shit. Which fucking judge is going to convict on a 5 Euro theft? True, if there was some other circumstance- e.g. the conviction was needed so as to deport the war-criminal with Swastika tattoos- then 'Nyaya' would incline us to convict the cunt and send him somewhere he can get his head kicked in for 30 days before being sent back to a jail cell in his homeland.
we moral agents can recognize the difference between malicious or self-centered embezzlement (of the sort that anti-theft laws are typically designed to prevent) and Brian’s desperate attempt to care for his sister, even though Brian’s actions still violate the letter of the law.
There is an equitable exception here of an obvious sort. In any case, de minimis non curat lex- the law does not concern itself with trifles.
In a similar fashion, Sen illustrates the niti-nyaya distinction with a reference to the Holy Roman emperor Ferdinand I who (in)famously declared “Let justice be done, though the world perish”; says Sen,
A similar phrase was a legal maxim in English Common Law at precisely this period. One meaning is that Justice should be speedy even if this is not convenient to the Monarch or the Law Lords. However, this is a statement of policy. A Pizza parlor has the policy of serving pizza even when the employees don't feel like serving pizzas. They want to give customers golden showers instead. But store policy is that only pizzas are served even if Trump and his pal Putin walk in and everybody really needs to pee.
“if indeed the world does perish, there would be nothing much to celebrate in that accomplishment,” no matter how much niti might have been respected along the way.
Suppose the world is due to end tomorrow. Then Judges will close the courts and go home. There is no point handing down a judgment which will never be enforced or serve as a precedent.
What, then, of the Rittenhouse verdict?
It seems clear that, in terms of niti, justice might well have been upheld regarding the specific question of the killings for which Rittenhouse was charged.
No. Niti means policy. The authorities could have refused to frame charges. That was a policy decision. The legal defense mounted could have been challenged. Prosecutors could have done more to paint Rittenhouse as acting with malice aforethought. The kid himself could have gone crazy and started Heil Hitlering everyone.
The morality of killing in self-defense is a wrought notion, but the legal precedents regarding its allowability are well-established and, by most accounts, the actual proceedings of the Rittenhouse trial centered almost entirely on these concerns.
But it is not at all clear that the Rittenhouse verdict protects justice in the sense of nyaya — indeed, the problem for many is that it can’t.
This is only the case if you think the kid should be in jail. But few do. Also he killed a pedo scumbag. Most peeps wanna buy him a drink. Not me due to I iz bleck and he might still have a gun.
According to Rittenhouse, he drove to Kenosha, Wisconsin (from his home about 20 minutes away in Illinois) to serve as a “medic” for people trying to “protect businesses” from protestors after police officer Rusten Sheskey repeatedly shot Jacob Blake in the back a few days earlier. Although misrepresentations of the details have abounded, as Rossi points out, those details matter: although Rittenhouse did cross state lines to get to Kenosha, his rifle was already in Wisconsin waiting for him. Although the relevant regulations are complicated, if the gun was purchased illegally (as it apparently was), the blame falls on the purchaser, not on Rittenhouse; moreover (despite the intention of the law in question probably pertaining to hunting contexts) Rittenhouse was, technically, apparently acting legally by wielding it in public as he did.
The problem here is that 'the facts of the case' are strategic. If the laws had been different, it is likely that the facts established by the Defense would have been different. Given the youth of the accused, there was plenty of wriggle-room for his lawyer even if the lad had made a clean breast of things.
Or rather, those details matter for procedural reasons.
No. They matter for legal reasons. Laws are not procedures. They represent a 'deontic logic' or 'sequent calculi' of a particular sort. If they are 'ergodic', procedures don't matter- i.e. no matter what sequence of steps are taken, the outcome is the same. However, if 'path dependence' or 'hysteresis' arises then procedural eventualities alter the outcome and thus may themselves give grounds for appeal.
Although questions of the gun’s legality might not pertain directly to the charges Rittenhouse faced regarding the deaths he caused, we might still wonder why he chose to arm himself heavily and insert himself into the situation in Kenosha in the first place.
We might answer 'he hoped to rescue a fair maiden from evil rapists. Then she would fall in lurve with him or, at the very least, give him a b.j.' Back when I was 17, hopes of that sort tended to dominate my thinking.
We could, for example, doubt that the protestors in Kenosha ever posed an actual threat to businesses or anything else (indeed, with the exception of Rittenhouse’s shootings, the Kenosha protests — like most protests — were quite peaceful);
But there could have been a fair maiden who took a fancy to the lad with the really big gun. Indeed, since protests are so peaceful, they represent a great place to show off your gun collection- right? Fair maidens too are likely to be scantily dressed in such safe spaces.
it’s not clear why anyone on the streets of Kenosha would have actually needed either rifles or medics in August 2020.
Which is an excellent reason to stand out from the crowd by bringing your big gun so as to impress fair maidens. If everybody has a big gun, then don't bother. Fair maiden will prefer someone with a bit of hair on his chest.
That is to say, it seems perfectly reasonable to think that Rittenhouse was breaking no laws by being in Kenosha on August 25th, 2020, and yet he still had no good reason to be in Kenosha.
This is foolish. 17 year old boys have one sort of 'good reason' which everybody knows about. You have access to a big gun or a muscle car or a really cool leather jacket. Whatchagonna do? Go somewhere fair maidens- or slutty ho-bags- might get to gaze in awe upon your scrawny form.
And, of course, if he hadn’t chosen to go to Kenosha, then Rittenhouse wouldn’t have been in the situation where he feared for his life and was forced to act, according to the jury, in justifiable self-defense.
Why not simply say, if the kid had been neutered at birth, then he'd probably never have left his parent's basement to go anywhere?
But this focus extends far beyond the niti-based concerns of the legal system
The Legal system can indeed provide 'judicial review' for Government or other types of policy. What is beyond that 'focus'? I don't know. Does the author? No.
to broader questions about how we want society to operate,
which is within the scope of social policy
how we hope people will freely behave,
which is within the scope of 'mechanism design' and other types of economic policy
and how we desire for virtuous individuals to flourish
which is within the scope of 'cultural and religious' policy
and help those around them to flourish likewise.
which is the aim of Government and other Social policy.
On its own, “traveling to Kenosha” seems morally neutral,
It seems natural when you consider that what 17 year old boys are biologically programmed to do is to get to where fair 17 year old maidens might exist. True, boys are often wrong about where this might happen. Take it from me, parties thrown by students of engineering aint exactly pussy forests.
but “traveling to Kenosha because I should protect it — possibly even with violence — from the rioters threatening it” is a perspective loaded with serious moral assumptions and judgments that are not clearly virtuous.
Coz 17 year olds don't tend to say 'I wanna get real close to a vagina. Not Mum's vagina. Anybody else's. Also, carrying a big big gun might get a vagina real moist. That's important coz Granny told me women have teeth down there.'
To criticize Rittenhouse’s actions in this broader sense (beyond simply asking “was he legally allowed to pull the trigger at the moment he chose to do so”) depends on one’s much richer perspective about what constitutes nyaya, or justice fully realized, altogether.
Bullshit! I have a very rich perspective about what constitutes nyaya because I have studied what my Brahmin ancestors have had to say on the topic. The plain fact is, 'don't do stupid shit or you might die' is a Nyaya maxim. No one else is to blame, if you do stupid shit and then get killed.
The guys who got shot did so because they did stupid shit. When I see a kid with a big big gun I run away. I don't try to take it from him. If I were a policeman, I might be obliged to do otherwise. But the guys who got shot weren't policemen. Their own stupidity caused them to endanger their lives. It was reasonable for a kid with a valuable gun to think that some rando trying to take his gun might shoot him with it so as to the more easily get away with the theft. Anyway, what sort of nutter tries to take guns off people? Probably the sort who will fuck them in the ass before blowing their heads off.
Consider this from a different perspective: the marches over the shooting of Jacob Blake were not protesting niti-related procedural infelicities that merely treated Blake inappropriately:
Fuck off! Them guys were protesting the crazy-stupid- policies- i.e. niti- of the Police, the Public Prosecutor, the Judges etc, etc. They weren't saying 'God is unjust. Death should not happen. Like Capitalism, it should be abolished. People should ascend to Heaven in their own body using a nice escalator. Also they should be provided popcorn and other snacks for the journey'.
they were outcries about the nyaya-based injustice of yet another black man (Blake) being attacked by a white police officer (Sheskey) and, in this case, left paralyzed (Sheskey faced no charges for shooting Blake).
This was not 'nyaya-based injustice'. Saying ' Multi Racial Capitalism should be replaced by Racially segregated- Socialism' might be a nyaya-based argument'. Some of the protestors may have had ideologies of that sort. But the fact is, the Blake shooting, like others, showed that Police policy was stooooooopid. It is very very fucking wasteful to shoot and paralyze a dude who has plenty of working hours left in him. On the other hand, from the Utilitarian p.o.v, shooting me won't cause much loss to Society. Sad.
As many have pointed out, if Rittenhouse himself were not white, his trial — to say nothing of his arrest — would likely not have proceeded exactly as it did (nevermind the multiple literal job offers Rittenhouse has received since).
Also, if America wasn't majority white, there may not have been anything we would recognize as a trial. There's a reason people were Racist. It wasn't a nice reason. It wasn't an indefeasible reason. But it was a reason.
More generally, does the fact that 'uncorrelated asymmetries' (e.g. being White, not Black) are correlated with judicial outcomes impugn the process? This is a question within the scope of economics, not moral philosophy. Why? Because such asymmetries are not informational simply but radically evolutionary- i.e. the answer depends on the fitness landscape.
So, although the niti-based details of the Rittenhouse trial might not have substantively included race,
This is crazy shit! Plenty of first rate African American economists and sociologists and jurists are using cutting edge statistical and SCM based research to determine if Niti- that is policy- is unconstitutional in this respect.
the nyaya-based context of the broader conversation certainly does: Rittenhouse’s experience is just one more example of the deference shown institutionally to specifically white bodies: a clear violation of nyaya, no matter how much it comports with niti.
If white defendants get to wear suits and are addressed as 'Mister' while black defendants appear in chains and are called 'Boy'- then, sure, no question, Niti (policy) is discriminatory. Sadly, this does not mean it is a violation of 'nyaya' since nyaya is not univocal. It would be perfectly in accordance with Emerson's understanding of Manu's nyaya for this to happen. Indeed, I believe such indeed was the practice back then.
In short, it seems clear and uncontroversial that people can commit injustices without technically breaking laws (consider how folks might escape just punishment on some “legal technicality” or other).
But then there may be an action in tort. Furthermore, the law does not prevent us from pursuing many wholly extra-legal avenues of redress. Indeed, this is one argument that Courts can entertain to remove a previous restriction in this respect. Thus, as a matter of historical fact, laws re. combinations in restraint of trade have been given specific exemptions with a view to making bargaining fairer and thus reducing the incidence of unconscionable contracts.
The author should throw away his Sen and study 'Law & Econ'. Justice is simply a service industry like Education or Religion. One needs to understand what externalities bind them together and how they can be substitutes and complements to each other. Old fashioned stuff, I know, but not as useless as Sen-tentious shite.
Sen’s distinction between niti and nyaya can help us to speak
turgid, vacuous, nonsense. By contrast, Sanskrit's bright line distinction between Policy (Niti) and Justice (Nyaya) keeps us on the self same road of common sense as the Anglo Saxon tradition.
more clearly about the dissatisfaction we feel at those times, even if technical procedures are perfectly honored. The problem might well lie in the broader, unjust context altogether.
The author is young. He is attracted to vague terms which express an adolescent sehnsucht. Nirvana or Nyaya, Namaste or Niti, Satori or Social Justice- exotic foreign shite appears attractive when we are a certain age. But so does roaming around with a great big gun in the hope of saving a fair maiden from evil rapists.
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