What role do emotions play in a system of justice?
When I read Martha Nussbaums article on the Afzal Guru hanging (Fatal error,IE,February 28) stating that for me,the telling point against the death penalty (apart from the concerns over implementation that I have raised) is that it encourages vindictive passions and in effect,enacts a type of mob justice. A system of justice should be above revenge; it should express a calm and balanced attitude towards wrongdoing,I was both clear about what she wanted to say,and uneasy. When I remembered the mass protests and public anger following the horrific gangrape in December 2012 in Delhi,which had produced the path-breaking Verma Committee Report on legal reform in cases of violence against women,I felt,even more,the need to unpack her statement,particularly the phrase calm and balanced attitude towards wrongdoing. This feeling grew when,on the same day,I read of the death of Stephane Hessel,concentration camp survivor,resistance fighter,and author of Time for Outrage,which inspired the occupy movements,and who called on younger generations to revive and carry forward the tradition of the Resistance and its ideas… take over,keep going,get angry!
How does one reconcile a calm and balanced attitude towards wrongdoing with keep going,get angry in ones aspiration for justice? Are passions antithetical to justice? Is it possible to develop a calm and balanced attitude towards wrongdoing,especially in the aftermath of a horrible crime? What does a calm attitude entail,and does it mean that disgust,distress and other such human feelings that come into play when one is witness to the details of the crime must be exorcised? These are some of the questions that came flooding into my mind.
So let me here try and unpack her statement and offer some reflections for our public debate. There are three elements in the statement that must be discussed. The first is the observation that vindictive passion enacts a type of mob justice,an outcome that is unacceptable since mob justice is inconsistent with the principles of fairness,impersonality,due process and evidence-based judgment. Rules made and judgments given on the basis of vindictive passions fail this test of justice. The implication here is that vindictive passions would not allow for due process and a fair hearing,since they would cloud the clear stream of reason required for the examination of the evidence. The desire for revenge,it is implied,would hasten the drive towards the conclusion before the work has been honestly done. This is an empirical claim requiring us to study how passion affects the process of rational deliberation,of how emotions obscure reason. Perhaps the keyword in Nussbaums statement is vindictive passion and not passion alone. While passion may be necessary for justice,as was the case in Delhi in December,vindictive passion is opposed to justice.
The second element in her statement,that a system of justice is above revenge,focuses on the desire for revenge,which is regarded as an emotion that clouds the working of a justice system since it exaggerates and distorts the calculus of evidence and argument that must be worked before a judgment is delivered or a law enacted. Revenge warps and disfigures justice. While this appears convincing,in that punishment must be awarded on the basis of rational arguments given,not on emotions held,it leaves the issue of retribution unattended. Is retributive justice excised of passion? Does it develop a system of justice that is completely above revenge? Is there not a trace of revenge or rather,must there not be a trace of revenge in any system of retributive justice,the feeling that the crime,if it is ghastly,must be punished proportionate to its severity? Again the Delhi protests,fuelled by a desire for retribution,or the Arab Spring,come to mind. What,then,is the relationship between the anger on the streets,the desire for retribution and the justice system being called upon to respond to this anger? Is Nussbaum opposed only to revenge as an emotion and not to anger? Or does she recommend the excising of all emotions in a system of justice? Does she regard some emotions as necessary to building a system of justice,such as hope and compassion,as against others? And if so,why are some emotions consistent with a system of justice while others are not? And where does that leave The Mahabharata,the great Indian epic,from which we draw our moral lessons,where revenge and retribution are at the heart of the just outcome.
This brings me to the third element in her statement,that a system of justice… should express a calm and balanced attitude towards wrongdoing. It is both straightforward and cryptic in what it says. While it invokes the principle of even-handedness,recommending calmness in the face of wrong-doing,it is not clear whether Nussbaum is favouring a disembodied and disembedded process of arriving at a judgment. What happens to the human sensibilities that would naturally come into play in such a situation? Should they have no presence in the decision process?
I suppose one way to respond to these questions is to distinguish between the process of arriving at a just decision and the decision itself. The process has two aspects,the procedural,where fairness and due process,as defined by a long and rich tradition of jurisprudence,is diligently maintained,and the personal,where emotions and passions jostle to influence the decision while reason and rationality struggle to assert themselves. In the ensuing turmoil,excess gets contained. Emotions and passions,even vindictive passions,have their play but they are not determining. Reason and rationality are not ab initio triumphant but need to struggle for supremacy in the face of emotional turbulence,both personal and social. Outrage foregrounds. Anger focuses,after which reason comes in attempting to reconcile the many registers of injustice that the indignation has brought to public attention. The great South African jurist Albie Sachs put this brilliantly when he wrote in his biography,The Strange Alchemy of Life and Law: Every judgment I write is a lie… the falsehood lay not in the content of the judgment,which I sought to make as honest as possible,but in the discrepancy between the calm and apparently ordered way in which it read,and the intense and troubled jumping backwards and forwards that had actually taken place when it was being written. Nussbaums statement,though calm,was based on a deep anxiety.
The writer is director of the Indian Institute of Advanced Study,Shimla. Views are personal
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