Justice and memory

Those of you who have watched Michael Sandell, celebrated for his on-line Harvard course on Justice, will know that he likes to work by describing  difficult, and sometimes extreme, situations. And then he follows this up by questions which enable his students to explore the principles of justice – and to defend their views. I am no Michael Sandell, but last week I met with the University of the Third Age local philosophy group which I moderate. I thought it might be interesting to share with you the, somewhat artificial, situation I proposed to them. You may like to put forward an answer, and see what other contributors think.

In this situation I imagine that I am an ex-dictator of a country. When I was in power I denied all human rights, I imprisoned, tortured and executed many of my innocent citizens. When unarmed crowds demonstrated against me I sent out my fully armed troops with order to crush the rebellion as speedily as possible. Unfortunately on the last occasion I was overthrown, captured and sent for trial at an international court, which had the proper powers to try and punish me.

Although the trial was thorough it was straightforward. There was abundant evidence of my evil deeds, the court found me guilty, and I was condemned to execution.

There was only one remarkable factor. When I was captured a hand grenade exploded and a splinter went straight into my head. While I am quite compos in the ordinary way, the splinter has caused me to have substantial and irreversible amnesia. My last memory is when I was 14 years old and living in my father’s palace. I of course have not, and will never have, the slightest recollection of my time or my deeds as a dictator.

Now you, individually, are the equivalent of home secretary, hearing an appeal for mercy. Prosecuting council simply states that my identity is established, my responsibility for my crimes is established, and death by execution is the condign punishment set by the court. Defence council argues that it is unjust and grotesque for me to be punished for crimes of which I know nothing. Although my identity remains the same in strict terms, I have the memory of an innocent 14 year old. I am, to all intents and purposes a different person from the dictator who committed the crimes.

Now, who will you go with: prosecuting council or defence council?

In order to prevent you from wriggling out of the issue, there are conditions imposed in this exercise. You must assume the following in your answer.

First, that I did actually and freely commit all the crimes of which I was accused.

Second, that this was actually proved in court although, for obvious reasons, I could contribute no evidence.

Third, that I do actually suffer from complete and irreversible amnesia.

Fourth, that the proper law stipulates capital punishment for the crimes I have committed unless it can be shown that I did not act freely. The evidence demonstrates that I did act freely. Whether or not you believe in capital punishment in real life, you do believe in it for this exercise.

Your answer is “yes” if you rule that punishment is appropriate in this case. Your answer is “no” if you rule that punishment is not just in this case.

When we have enough answers to work with, I will tell you how my philosophy group voted, and also what we might infer from “yes” and “no” answers (if you haven’t worked this out already).

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About Quentin

Science Editor, Catholic Herald. Portrait © Jacqueline Alma
This entry was posted in Moral judgment, Philosophy, Quentin queries, Uncategorized and tagged , , , . Bookmark the permalink.

17 Responses to Justice and memory

  1. Horace says:

    Yes.
    It could be argued that the individual in this case is already ‘dead’; but the ‘punishment’ is not strictly unique to the individual, it is a deterrent to others and as such established in law.
    [Note that I think punishment is appropriate. Wether or not it is ‘just’ is perhaps arguable.]

  2. John says:

    This is something of a classic illustration of the difference between our view of justice and God’s. Lack of memory does not justify past deeds – the formula we use in Confession is ” for these and all my other sins which I cannot now remember, I beg pardon etc…”., there has to be a line drawn between objective evil deeds and moral guilt, but surely this applies at the time of the deed, not the state of one’s current memory.
    I would have to judge “guilty”. God would probably take a different line, but on the grounds of mercy rather than justice, based on a state of grace at the point of death.
    I am happy to be told I am talking rubbish.

  3. Ion Zone says:

    This situation raises many difficult issues. Are they faking? Is it ever right to execute someone? Wouldn’t prison be better since prison gives them a chance to, perhaps, think about what they did? Are we any better than them if our response to a problem is to kill those responsible?

  4. st.joseph says:

    My answer would be depending on his attitude now, how does he feel about the person he was when committing the crimes. Has his heart changed, would he still do the same things again. If he has the mind of a 14 year old he obviously would have thought the same at 14 before he did the crimes.
    He must have had something in his nature then.Guilty Yes, but under the new circumstances -prison forever until death.

  5. Brian Hamill says:

    All laws are conditional, that is, they are a reply to a situation which pre-exists. This being so, it is, for example, useful and informative to look at a country’s laws and work out what its citizens have been up to. ‘Thou shalt not kill’ indicates that someone has killed someone else. Laws therefore are reactive, not pro-active. We can now investigate the conditions under which the law according to which I am to be executed came to be promulgated.

    The law is a straighforward reaction to the situation of heads of state misusing their powers. Hitler, Stalin etc. provide plenty of historical examples for the conditions according to which this law was made. But it certainly never took into consideration the present situation so we now have to decide how to react to it.

    It is possible to decide to extend the remit of the present law and simply say that this new situation is drawn under the original condition. It is also possible to appeal to the mind of the legislator. Would the international court, which presumably ratified this law, be able to make a rational, as opposed to a practical, decision in this case?

    We also have to consider the logic and rationale of punishment. It is part revenge, (a purging of righteous anger), part deterrence (pour disencourager les autres) and part medicinal (for the betterment of the criminal). The first two will be satisfied by my execution; the third one also, strangely enough, since capital punishment was acceptable to the Church on the basis that if the criminal himself accepted the justice of the execution, this would redeem him. The prime example of this was the good thief on Calvary.

    So, all in all, if I accepted, on the unanimous evidence of others, that I had done these things, I could willingly go to my execution and, in so doing, find redemption both on earth and in heaven.

  6. Peter D. Wilson says:

    I think this is a case for a typical British fudge. Yes, the accused is guilty and execution the appropriate penalty, but it should be suspended pending the restoration of his memory (by hypothesis, indefinitely).

  7. Iona says:

    Besides Brian’s three “rationale”s for punishment, there is a fourth, – to protect society from any further crimes which the convicted criminal might commit if he were given his freedom. It’s not clear whether this ex-dictator with his 14-year-old mentality does or does not constitute a continuing threat. If a team of psychiatrists can establish that he is now a pleasant, easy-going laid-back sort of bloke who wouldn’t hurt a fly, then perhaps he should be set free (although for his own protection from a vengeful public he might need to be incarcerated).

    On the other hand, plenty of children of 14 and younger (the killers of James Bulger, for example) demonstrate evil intentions and evil tendencies, and if this ex-dictator is in that category, he certainly shouldn’t be freed. Though I’d be loth to say that evil intentions on their own would justify execution.

    The criminally insane used to be lobotomised. After which they were considered to be no longer a threat. No, I’m not recommending it. But lobotomy was sometimes an alternative to execution. In a way, this ex-dictator has been accidentally lobotomised.

  8. John Nolan says:

    Yes, in the strict conditions that Quentin has laid down. He is quite compos mentis and presumably accepts that he has done these things, even if he can’t remember doing them now. It’s not the same as a sleepwalker who might do things involuntarily and would not therefore be culpable. However, if the injury had caused brain damage which rendered him less than compos mentis, or with impaired speech or movement, the situation would need to be reviewed.

  9. Nektarios says:

    Before I try to answer this complicated hypothetical case of this dictator with amnesia,
    I would would like to pose some questions of my own to the Third Age Philosophy group and Michael Sandell, as it has a great bearing on the this hypothetical case.
    Is there such a thing as Justice actually? Is there justice in the world today?
    Justice implies equality, right!
    So if I am poor and live in a hut and you are wealthy, having opportunities not afforded to the like of me in my hypothetical mud hut, is there equality, is there justice?

    One says, Justice for all before the Law. Being rich you can afford the most expensive and highest paid lawyers, I am poor and cannot afford any highly paid lawyer. So there is immediately
    inequality.So where is justice in the world today?

    Law can and does give superficial order and peace, but it is a myth for it is neither order or peace, is it? Can that which is disordered produce order?

    What is sanity? Sanity means to be whole, healthy and holy.
    Insanity,means to be neurotic, psychotic, unbalanced, schizophrenic, whatever name you give, it is to be fragmented and broken up in action and movement of relationship which is existence.

    To breed antagonism,and division whch is the stock and trade of politicians( the law makers),
    who represent us, is to cultivate and sustain insanity, whether they are dictators or those in power in the name of peace, or for some ideology. Has the priest like the politians or dictators
    conditioned us through belief? Are they not the propagandists? Have they conditioned us for their own comfort and security but for us a dread tomorrow? Are they sane? The scientist, the artist and the intellectual admired and flattered, are they sane?
    I think that is enough questions to go into in depth by the Third Age Group and Michael Sandell.
    (Please pass on to him.)
    Now our hypothetical dictator before the court with crimes against humanity etc.
    In your opening introduction to our hypothetical dictator, you say, “… I do suffer from complete and irreversible amnesia,”
    The fact he claims to remember when he was 14 and so on, shows he is trying pulling the wool over peoples’ eyes. To convince the judges that he is an innocent 14year old boy and harmless,
    is stretching credibilty too far.There is probably little or no impairment to his memory. If the judges were taking in by this difficult to prove condition and the permancy of it, they would be letting loose a cunning wily dictator.
    If the law of the Court is death for his crimes, then he should be sentenced to death.

    I end with a question: If the pattern is established that allows those who are insane as described above, to be or continue, in power, then there will be more dictators, more injustice, wars, sorrows and miseries on society and nations; ending our hypothetical dictators life for his crimes does not change anything apart from superficially, is that not so – so where is real justice; where is sanity?

    • John says:

      Nektarios and others…
      I accept your general discussion on the broader issues of justice in the world, but respecting Quentin’s specific case he lays down as one of the conditions that the memory loss is genuine. Incredulity? Proof? Yes, but we are asked for analysis of a theoretical case. Hence my earlier distinction between justice and mercy – if I read the question aright we were asked about justice within the terms of reference of the court.
      There is much room for discussion of broader issues, but I think Quentin is looking at a narrower issue. Perhaps he will enlighten us?
      John.

      • Quentin says:

        Thank you John. You have clearly done this sort of analysis before, and you are right. The issue is narrower. In fact it has to do with continuity of identity. At the biological level this is easy to trace — the same genes are operative in the succeeding cells, major alterations are connected and gradual etc. The psychological level is the one that causes difficulty. Introspectively I see my own continuity through memory. Thus I am the same person who remembers the “stop me and buy one” ice cream bicycle — which I can now date to 1939 when it ceased for the war. I accept the fallibility of memory but the range of memories and their diversity makes it clear to me that I am continuous.

        But does psychological continuity only exist because of continuous memory? Many philosophers have claimed this. Our present self is, so to speak, the product of our memories. But if this is actually so the dictator in the example cannot in justice be punished justly when he has no psychological continuity with the self of his past crimes. In his present state he cannot be responsible, i.e. required to answer for, crimes he cannot remember. He would go to the gallows with the mental innocence of a 14 year old. (One may of course argue that public policy etc could require this, but this would not make the punishment just with regard to the dictator.)

        But if it is not memory through we which we recognise our psychological continuity, then what is it?

        We can consider this further, and indeed the philosophers do, by supposing — per impossibile — that some new methodology allows you and I to exchange memories. Would I then be responsible for your crimes and you for mine? If yes, then the dictator who lacks memory cannot be justly punished. If no, then he can be despite his total ignorance of the crimes.

        All this may seem very arcane. And it is certainly artificial. But it enables us to isolate the principles we hold with regard to a number of things. For instance do we have the same identity from conception onwards. Why do we continue to be responsible for past actions when we have changed, or now regret them? Is the fact that in principle we cannot remember anything prior to the formation of neurones which can store memory through connections relevant to our recent discussion on the human rights of the embryo/foetus? When I look at that photograph of a three year old boy and say, that’s me, what do I mean? etcetera

        Nyone inclined to explore this further could do worse than going to http://plato.stanford.edu/entries/identity-personal/

      • Nektarios says:

        John and Quentin,

        You are both missing the points I raised entirely.
        Scientific analysis has its place, but it is a fragment. I realize, John, that there was a narrow field and terms of reference from which to make a decision of yes or no.
        This is frabricated to produce one predeterminded answer. But limiting as Quentin does,
        is not good science, law or justice.

        I was aware of all that, and challenged it, not only on the particular within the remit,
        but posed the questions Is there Jusice in the world today… when there is inequality?
        Is there Sanity in the world when one is conditioned by and controlled by those who are insane?
        If one wants power over another, it is insanity, leading as it does to fragmentation throughout all societies, fragmentation in the personality, the mind, the family, education, the work place, politics and practically every institution exercising authority and power over another.
        Which insane people so conditioned us to accept this law, this authority over us?

        I don’t buy Quentin’s argument.
        We are dealing with a genetic medical/ psychiatric group
        who as a group are equally conditioned, equally arriving at cutting edge science,
        pontificating on it, projecting the total effects of it, without understanding much about it.
        If the neurological people admit to barely knowing only 2% of the actual working of the brain which is a lot, but still minute compared to the total. It is like arguing someone who understands around 2% of a car engine should be able to call their self a mechanic and let loose on your car.
        It is is give quasi- authority to those who have vested interests (usually very well paid interests).
        We may have mapped the geno, but we have no idea yet, of the total, natural inter-relation between it all. Yet, here we have a group, assessing on the information given, as total, but is in fact small, limited and structured to force one to give one verdict.
        Utter madness!
        What I said, if you observe and look more seriously into can and does stand.
        PLease note at the end I was careful at the end of what I said, “If the law of the Court is death for his crimes, then he should be sentenced to death.”
        I have not given my view, which is irrelevant, but the Court. If the Court is so circumscribed in understaning of the issues, then Justice too will be equally limited and circumscribed, perhaps not justice at all, rather fearful of making a mistake.

        another authority

  10. John Candido says:

    As I don’t have an unequivocal answer that I am happy with, and I would prefer in the final analysis for mercy. It’s an answer of sort, but only because capital punishment is so final and I want to give him the benefit of the doubt regarding his complete and irreversible memory loss.

  11. st.joseph says:

    Quentin.
    Those who have suffered under this mans crimes would have a memory, so surly some justice would be taken into account as to what happened – it happened whether he remembers or not.
    Where is the justice for the crimes he committed to others.
    Not everyone can forgive without satisfaction. They still have a memory!

  12. JohnBunting says:

    In a society based on the rule of law, punishment, if any, should be decided by legal process, not by private revenge. Therefore, in such a case as this, the convicted man, if not executed, must remain in custody for life, as there will undoubtedly be some who wish to harm him.
    From that point onwards, the case immediately calls to mind the saying that ‘hard cases make bad law’. If a death sentence is mandatory, the defendant being guilty as charged, there seems no alternative to carrying it out. But what does ‘guilty’ mean here, with the man remembering nothing of his criminal actions, and the court acknowledging that fact?
    However, If I am ‘the equivalent of home secretary, hearing an appeal for mercy’, that implies that I do in fact have the legal power to grant, or at least to recommend, mercy. If I have not, there is no point in allowing an appeal!
    It would seem to me preferable for the man to remain in custody in humane but frugal conditions, and to do some work which would contribute to his own support and to the good of society in general. My answer therefore is ‘No: I would rule that capital punishment is not just in this case’.

  13. John Nolan says:

    Bravo Quentin! Going back to Nektarios’s comment, it is no doubt that theoretically we are equal under the law and of course equal in the sight of God, but egalitarianism as understood by (for example) those responsible for the French Revolution is antipathetical to both Catholic doctrine and Natural Law.

  14. tim says:

    It is established that he did what he was accused of. “The law is clear” (as Lord Mildew says). He must die. As Home Secretary, I look for clear reasons for exercising clemency. I don’t find any.

    Of course, I’m evading the question by a technicality. Whether it is just that he should die is quite a different matter.

    What do you (the dictator) think? You cannot deny what you did, even if you cannot remember it. How do you think someone who behaves like that should be treated? Maybe we have a Morton’s Fork. If you think such behaviour is inexcusable, you consent to your own death. If you find it excusable, that opinion is so repugnant that I (the Home Secretary) may reasonably ignore it.

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