The role of law in society
Sin is in the will, as Fr Henry Bodah said in a homily a few months ago: meaning that the desire for something is impossible to prevent, and not a sin; it is actually intending to do it that is the sin. Let us consider the case of the man recently arrested for attempted rape, of a girl that existed only in the imagination of the cop setting up for a sting. He was stopped in the driveway, carrying a number of sex toys to the house he believed to be the residence of the girl, where he believed her to be alone. In this case, the guy was sinning ("acting immorally", whatever) before he ever hit the driveway. If he got to the door, about to knock, and then turned around and went home, he'd still need to reconcile himself to God (or with society, or whatever). From a standpoint of JUST HIM, actually having sex with a girl is morally indistinguishable with the serious intent to do so. In either case, he needs to regret the transgression and atone for it; arguably in the case where he backs out of actually doing it, this has already happened (but see below). If he did go through with it, but later (truly, honestly) regretted it and repented (atoned, etc), then I, as an omniscient observer, would be exactly as comfortable with him being around kids as if he had intended to but then backed out. Namely, I'd be a little leery that he might succumb to weakness, but God would forgive him and so would I. NB: Forgiveness is not permission!
Legally, on the other hand, we need to consider the needs of all people. The function of the legal system (one of the functions) is to protect people from each other, and cases like child abuse are perfect examples. We need the legal system to protect the little girls of the world from child abuse, somehow. Unfortunately, The Law is not an omniscient observer (or perhaps The Law is, but its agents---the police, judges, and juries---are not). And The Law is not concerned with the man's spiritual and moral needs, so it doesn't care when or even if the man repents his sin; its job is to protect little girls. If the man is turned back at any point in his quest to rape a little girl, if only because of fear of getting caught, then The Law has succeeded, at least for the moment. He may or may not repent of his sin, but The Law just doesn't really care. Alternatively, if he *is* caught at some point, either before or after committing the crime, The Law has the job of preventing it from happening again. In order to do that, it needs to ask questions like, "how likely is this man to commit crime in the future?" "What can we do to prevent this man from committing crime in the future?" "What can we do to prevent other people from committing crime in the future?" These last two need to be tempered, by answering questions like "what responsibilities do we have to this man?" "How certain are we that we are right (that he will or won't commit crime in the future)?" "What if we are wrong?"
Now, reasonable people disagree on the answers to these six questions, but I think most people, if they stop to think about it, would probably agree that they are the right questions to ask. Note that "do we know that this man *actually* did commit/would have committed this particular crime at this particular time?" is a red herring---if you think it matters, then the outcomes you are looking for will fall out naturally from your answers to the other questions. And this is all a bit abstract anyway, because to the extent that our legal system needs concrete foundations in fact in order to remain objective, it does need to talk about things like "did he commit the crime?"; but this is a proxy for the real questions. I'm not really talking about actual laws in this essay anyway, but how The Law should be, and the platonic, abstract ideals our actual legal system should work towards.
So now, let me return to the case I introduced above. A man goes to a house where he believes a little girl lives, with sex toys; he (presumably) intends to have sex with her. How likely is he to commit crime in the future? Probably very. What can we do to prevent him from committing crime in the future? Make him undergo psychiatric treatment (maybe, depending on whether that would work or not), lock him up for life, or kill him. (Shocking, but see below.) What can we do to prevent other people from committing crime in the future? Depending on whether you think prison time serves as a deterrent, either "nothing", or else the three things I mentioned above (plus a prison term shorter than life; wouldn't keep him off the street but it might deter others). Now, temper that: What responsibilities do we have to this man? Well, he is a human being and thereby has several human rights; this (I would say) prevents us from killing him. How certain are we that we are right (that he will or won't commit crime in the future)? Well, this is a big question, but given recidivism rates and so forth, we can be pretty sure. This is where the attempted/actual distinction in the real legal system comes into play: if he only "attempted" to commit a crime, it's possible that he just has a slow-on-the-uptake conscience or a delayed fear about the law, and he would always back out before actually committing a crime. If he actually committed rape, we can be considerably more certain that he will (try to) do it again. Finally: what if we're wrong? Well, this is another good reason not to actually kill him; and also a good reason to allow for the chance of parole. If in fact he undergoes some personal change that means he actually won't commit crime in the future, then there's no reason to continue holding him. Of course, judging whether that's true can be tricky and is more of an art than a science: I do not envy parole officers their job.
A lot of hypotheticals could be raised: what if his motives were more pure? What if there had been an actual girl in the house? What if he would have gotten to the door and then turned around? I will not treat them individually. Most are equivalent within the philosophical framework I set up: it doesn't matter what actually happened in this particular case, except as evidence with which to decide our answers to questions about his future behaviour. Shaping his and other people's future behaviour to be compatible with and not damaging to society is the true job of the legal system; anything else is just petty revenge.
Thanks to Fr Bodah for the homily that provided the kernel of this essay. The views actually expressed, however, are my own and should not necessarily be taken to be those of Fr Bodah, the Catholic Church, or anyone else.
Feel free to link to this essay, but do so at its original link: http://www.blahedo.org/essays/law.html. Feel free to quote this essay in whole or in part, but please attribute it to me and (if on the web) link to the original.
Don Blaheta / web@blahedo.org
this space intentionally left blank