In this column, I want to share with the reader an interesting observation about how various social concepts arise that seem self-evident to us. Take the concept of “justice,” for instance. Closely related to it is the idea of crime, as a violation of this principle, and punishment, as its restoration. This is precisely how these phenomena are conceived in modern law. In modern law, crime is actually a depersonalized act: there is a criminal, there is abstract justice, and there is the state, as the agent of this justice, which through the court and penal system determines punishment for the criminal and restores justice through his suffering.
In real life, however, crime is an act directed against the victim, not against some abstractly understood justice. Real justice consists in the criminal compensating the damage caused to the victim, not in his punishment. Where did this apparent contradiction come from? Are abstract justice and the idea of its “restoration” products of the evolution of law, and therefore, in fact, the only possible way of their existence?
More likely than not, here we are dealing with a historical phenomenon rather than with a result of evolution. Evolution certainly takes place, but it is a rather specific evolution, about which we will say more below.
According to some legal historians, the concept of justice has clearly expressed religious roots. In particular, Saint Anselm comes up, who in his treatise Cur Deus Homo tries to explain why God required such a strange method of atoning for original sin as the crucifixion of Jesus. That is, why could he not simply forgive people their sin? Anselm’s argument is that God was forced to resort to the mediation of a God-man because he faced a certain bind. On the one hand, he created man for eternal bliss and therefore cannot simply punish him, as is only right. On the other hand, man offered insult to God but is unable to make atonement for the crime. Man’s rebellion violated God’s design, the universal law, that very abstract justice according to which man was created for eternal bliss. Therefore, for the restoration of justice, God has recourse to the sacrifice of the God-man Jesus, through which original sin is atoned for. Such is the scheme.
Unlike our time, the medieval church (we are talking about the eleventh century) was practically the only institution engaged in science, jurisprudence, education, and charity. Approximately at the same time, Roman law was rediscovered in the form of the Code of Justinian, and canon law was formalized in the form of the Decretum Gratiani. Again, unlike our time, canon law concerned itself not only with church matters but also regulated quite secular affairs, including criminal ones. Moreover, after Gratian’s decree, this law contained a significant part of Roman law.
Outside of canon law, custom prevailed. In this customary law of the Germanic tribes that inhabited most of Western Europe, crimes were interpreted as they should be—that is, as injuries against the victim. However, in all other respects, things were not very good. Instead of gathering evidence, trials by fire, water, or combat were used. The concept of “intention” also did not exist, and so on. Against this background, Roman law used by the church looked much more progressive, since it had clear procedures that allowed for a sufficiently independent and objective determination of guilt or innocence. Therefore, over time, “barbaric” secular law was displaced by “new Roman” law. But part of this law was already the idea of “restoring justice.” Further, this idea, together with Roman law, migrated into secular legislation. After some time, the state realized that the concept of “restoring justice” gives it much more power than the idea of crime against the victim. The state gradually appropriated to itself the right of “restoring justice,” that is, in fact, took the place of God. I note that there is nothing unnatural here. In Anselm’s concept, God actually acts as the owner of man and, like any owner, determines the rules of disposal. The state is also actually our owner. Therefore, it determines what constitutes a crime—a violation of the rules of exploitation—against it and punishes for it.
The story of Saint Anselm’s ideas can add to the collection of examples of how the state operates as a kind of market. About Anselm’s principle, it is impossible to say that it was consciously introduced into law with some evil purpose. Rather, one can say that it was “taken up,” “adapted,” and so on, and those who adapted and took it up did not suspect and could not have suspected the consequences, which became clearly apparent only a few hundred years later. Moreover, most likely, these people were driven by the most noble goals of eradicating barbaric customs and establishing laws based on reason and justice. Therefore, when you deal with the state, you must always remember that everything the state uses—including any ideas and concepts—sooner or later, but absolutely inevitably, will be used against you.