Tuesday, October 1, 2013
Idle Thoughts -- Forward vs Backward Looking Justice and Affirmative Action
Explain forward looking and backward looking justice and apply both to the issue of affirmative action .
Backward list looking justice is sometimes referred to as punitive justice. It means that the best response to someone committing a crime is an appropriate penalty or punishment. The Romans used to call it lex talionis, which means the law of retaliation. When I first learned this term in high school I thought it would make a great superhero. You know, Lex Talionis, defender of justice? Somehow I ended up Couch Potato Man, but that's another story.
As terrible as this law sounds at first, it's actually improvement over what was often accepted as an alternative. When the code of Hammurabi, and the similar rules in the Bible (an eye for an eye), were first adopted, they were actually attempting to make the law gentler and kinder. Before these laws, punishment could be as extreme as the punisher wanted it to be. Now, they were limited to only inflicting suffering and pain on the individual who would hurt them in the same proportional amount. No longer could they demand two eyes for one eye. Or even death for one eye.
In the 19th century, philosopher Immanuel Kant argued that the only legitimate form of punishment the court can prescribe must be based on retribution and no other principle.
"Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime."
Kant regards punishment as a matter of justice, and it must be carried out by the state for the sake of the law, not for the sake of the criminal or the victim. He argues that if the guilty are not punished, justice is not done.  Further, if justice is not done, then the idea of law itself is undermined.
Kant's position is clear enough. There is one purpose and only one purpose for justice. It must be looking backward. Someone committed a crime. That person must be punished. End of statement.
Forward-looking justice takes a completely different attitude. Instead of saying someone deserves punishment, therefore he must be punished, those who support forward looking justice say that we must punish the guilty not to get revenge or to balance the books but, more importantly, to prevent the guilty man or others from committing future crimes, and to rehabilitate the guilty party. This is exactly what Kant said we must not do.
Supporters of affirmative action fall into the second category. They believe in forward-looking justice. They are very clear in their intent. They do not believe in affirmative action as a punishment for the previous crimes of White people and American society against formerly oppressed minorities. Instead, they say that all of society will benefit if we help lift these formerly oppressed people up to an economic level which is equal to that of White people. Again, remember this is not done in punishment, but rather as a cure for social ills and to benefit society in general.
Opponents of affirmative action contend two things. First, they believe that telling a White person who is best qualified for a job that he cannot have that position and that it will instead be given to a less qualified person of color because of past injustices IS punishing that White person. Worse, it is punishing him for something that he did not personally do. Instead, they believe, he is being punished for something which was done in the past, perhaps even before his family emigrated to America.
In other words, they are saying that not only is this negative justice, it is negative justice unfairly imposed upon an innocent person.
The second thing they say is that this is an ineffective system in any case. They believe that the best way to encourage minorities to do better in society is to guarantee that they will get a fair chance at any job. If a Black person is the best qualified than that person should get the job. However, they add that if a went White man that's better qualified applies, then that White person should get the job.
I have to tell you my story about affirmative action. When it first came out, I was a strong supporter. I believed it was an effective way for the government to improve society for everyone. More minorities in the middle class would mean fewer minorities in poverty. That would mean less crime and a stronger economy. I also felt would help make up for the awful things we have done in the past.
I now believe that affirmative action is not an effective way to address these ills. I think we need to do other things, but I won't list those here.
When I was still a new principal, we had an administrative staff meeting. During the meeting I discovered that our tiny district, we only had four schools, have been criticized by the federal government for having too many White people in the position of principal. If you'll think about it, you'll see how silly this can be. We only had four positions. It's hard to get a really great racial balance out of four positions.
We discussed the problem for a while and then I asked a question. I pointed out that when I filled out my government forms, I just naturally always filled them out as "white". However, I noted, I regard myself as White Hispanic. What I asked was, what would happen if, the next time the forms were due, I just filled out Hispanic instead of White.
The rest of the team was very careful to point out that no one had asked me to do that. I said that of course no one had asked me to do that, I was the one who had asked the question. This was important because it had to be clear that no one was pressuring me to do something I didn't want to do. The government can get really paranoid about these things.
Very cautiously, everyone agreed that it was was up to me to mark the form any way I wanted to. And that was that.
The next time the forms were due, I marked Hispanic . Not long after that the government sent us a message praising the wonderful success of our efforts to increase diversity in our principalships. The government can be really stupid sometimes.
After that, I began to tell people that I was very glad that I used to mark my forms White. It really didn't matter to me which one I marked. It was just habitual . But I was glad that I used to mark the little box "White", because now I could say that no one could ever accuse me of having gotten my position because of affirmative action.