On justice: "Jewish" reflections on the Derek Chauvin conviction

A prominent liberal New York Reform rabbi said in last Friday’s sermon something I am sure many Americans, whether Jewish, Christian, or something else have thought: At last, punishment for one of the enemies of a certain subset of the American people.  I read at about the same the same time that Derek Chauvin, not only now juridically discredited, is being held in 23-hour-a-day solitary confinement.  This is a form of torture, recognized by the United Nations as such, and very commonly practiced in the United States.  There are other forms, also practiced in our prisons, such as the use of rape as punishment, in effect, wielded by ordinary prisoners acting ‘freely’ but under the tolerant gaze of the prison authorities.  (Just as in the Middle Ages mobs would kill Jews on suspicion of engaging in magical acts of violence that preyed on innocent Christians.  No conspiracy directed this evil, though beliefs shared and enforced by the ruling powers did not help, as their own particular way of pursuing their self-interest did not, since they sought to profit by alternatingly encouraging Jewish moneylending that could be taxed and expulsions of Jews facilitating self-enriching confiscations).    

Judaism developed an unusual relationship to political authority.  In contrast to Christianity, it did and does represent the possibility of an ethics (pursuit of the good) without moralism (fighting and policing evil, typically conceived as transgression, or disobedience).  It is not dependent on either transgression or forgiveness, and it does not separate divine powers between justice and love, as in some of the dualisms that have always haunted otherwise monotheistic traditions.  

That no one should be punished and the law only studied or appreciated in art is a utopian possibility (that does figure in Judaism) whose implementation would be ill-conceived in a context where we are still dependent on their iteration in the usual cruelty of punishments, as without enforcement we could not effectively enunciate the moral truths implicated in the refusal of the senseless violence that is repeatedly being implemented by the state.  

This rabbi says that he believes in the American justice system.  Everyone knows that either that system structurally, or its uses adventitiously, is very much part of the problem.  The rabbi was educated in the English tradition of political liberalism, and calls himself a moderate.  Liberalism accepts as necessary evils extant forms of domination and calls for limits to them that keep them in check.  Evils then are not likely to appear as structural, as institutions are credited with the good intentions espoused by their leaders.   

The trial of Derek Chauvin was a widely publicized show trial, as was proper.  The most important effects of such a trial are in the public statements that it makes it possible for a jury and judge, acting in the name of the people, to make.   This means that such trials, as with every news event and published act of government today, are important as something like works of art.  Their function is allegorical.  By that I mean that one thing is said in order for something similar that cannot be said directly to be articulated and understood.  What could not be said is that justice for the murdered man, George Floyd, is now in force.  This is not possible because he is dead and cannot be resurrected.  Justice as reparative payment is always a useful fiction.  In its judgments, it establishes value, which is itself the fiction that says this is how things shall be considered and called.  This is a kind of truth.   Like artworks, at least as classically conceived on the model of theater given to us by Aristotle, such a legal proceeding is substitutional, and representational.  Derke Chauvin is not the problem, but only a small part of the problem, and he is also in the context of this proceeding, its symbol. His guilt and visible, or at least remarkable and known, punishment, is a symbol of that of America itself in its true guise as a police state that murders descendants of its earlier slaves for no good reason or none at all.  Acts like that of Chauvin and his accomplices uncannily combine the state’s rationally legitimated and carefully regulated official violence, supposedly reserved for the deserving, with the violent unruliness of agents of law enforcement acting with impunity to enforce only force itself and its violence.  This same question arises in trying to understand the violence of  Nazism: How could it be that the Jews and others were both exterminated by rational policy in a bureaucratic and technological procedure, and at the same time able to be victims of arbitrary acts of passionately violent hate? 

The purpose of representations is to aid in understanding, and the purpose of understanding the world we live in is to live in it more perfectly, partly by changing not just not or not only ourselves but that world itself.  Allegorical justice enables us to do this.  For this reason, it may be that we need Mr. Chauvin to be tortured.  Certainly many people will say that we should show him no pity.  Or that the very question of mercy here is highly inappropriate. For it is the moment of justice for the victims, not the perpetrators.  In whatever we do to Mr. Chauvin, think only of Mr. Floyd.  There is an exchange here, an equivalence established, and it is as fictional as anything that is done with money in a Marxian framework, making two things exchangeable because equivalent in value; not the same thing, but said to be the same.  

It is true.  The convicted prisoner must now have on us only a minimal claim to mercy, as he or she is now placed outside all normal spaces and temporal processes of justice.  Sentence has been passed.  A statement has been made, and in our name, and we affirm it, most of us, as we should.  The purpose of the system of justice is judgment; its function is to produce judgement.  And these judgments are correct or incorrect, true or false, and we want and need them to be true judgments.  This is part of the logic of judgment, as it should be.  Indeed, an unjust world is not one merely in which bad things happen; that is a tragic world.  An unjust world is one in which they are permitted, and not judged, and judged with enforceable effectiveness.   

One interesting fact about heroes and villains both is that their lives are publicly transformed by a totalizing identification into representations of the moral quality of their acts.  That is why there are statues of heroes, and why we commemorate people’s lives usually after their death, for who wants to be transformed while alive into a kind of statue?  What if you had an identity that were complete, your life story as part of it?  You could reasonably then be expected to live true to it, adding nothing.  This would be an even more extreme eventuality than being given to understand that your identity is as member of a demographical group, and you are invited only to give a suitable performance of it.  In this instance, this is an argument for Chauvin to be given the death penalty.  It is by definition perhaps unmerciful since unkind, though it seems to me some things that are done to people in the course of imprisonment are more palpably unkind and cruel than putting them to death would be, which has finality and brevity.  

Prison takes people outside normal society and places them in a space and for a time where they are maximally separated.  Prisons, mental hospitals, and places like them, like camps for refugees, or populations unassimilable by the state, are places that effect a separation of a person from his or her life or world as heretofore defined and understood and lived by them, and so in so doing separate them from their potentialities, what they can do.  It in particular separates them from any positive potentialities, in the sense of things they can do that are designed and meant by themselves as pursuits of their own happiness,  pursued autonomously, and that seem can seem to themselves and perhaps others as part of an idea of the good.  

The rabbi recounts the story of the Levitical scapegoat who is sent into the wilderness bearing the sins of the congregated people.   This is the substitutional representation of sacrifice, historically linking religion and law and reworked in classical tragedy.  In the same sermon, he gives acts of injustice a mystical conceptual name: evil is like a disease.  This means in part that it is inexplicable.  The good can be understood, the powers of evil are those of darkness.  This is dualistic.  In fact, few things need more to be understood than the evils of our time.  I find it much easier to understand the George Floyds of the world than the Derek Chauvins.  To me, his act seems monstrous, explainable only as an expression of rage, perhaps partly because he needed to be obeyed and partly because he was already angry in some way that provided a framework for a black man to be the victim of that rage’s expression.  And this is monstrous.  Not the rage itself so much the act.  The understanding of evil does not absolve it.  It might even not purify us, making us more holy.  I am not sure that sacrificial notions like that really belong today in our public morality and systems of judgment and justice.   Where understanding fails is perhaps more in the mind of those who are able to do or countenance the kinds of horrifying cruelty that the Chauvin conviction denounces and is meant to help prevent.  Let’s hope it does; in fact, the context of the trial was also one of an increased incidence of similar acts to that of the man on trial.  The trial did not, at least immediately, end this violence, but intensified it.  Though I am certain that the overall effects of the public trial and its verdict will be to reduce incidences of this kind of crime, though that may only be the result if there is continued and sufficient protests. Of course if you ask people who do this kind of thing why they do it, their answer will not seem very credible.  Maybe it is true: they do not know what they do, which does not entail that they should be forgiven.  It means they should find out. Crimes like the killing of George Floyd will become much rarer when it happens less often that anyone in Chauvin’s position at the time can think that it makes sense to do the kind of thing he did.  Just as prison rape will end when it is much rarer that any man will think it I makes sense to do that, and when enough good people are able to persuade those who manage these prisons that it does not make any good sense to tolerate or encourage such acts, and they certainly do both.  

Cruelty in American society has long not been in any shortness of supply.  I recall years ago visiting Canada by car in the company of relatives of my family who were heirs of a corporate empire.  Everyone in our car was, looked, and acted quite middle class and proper, but that did not spare us on the return trip.  While the Canadian border police were scrupulously civil, in a way befitting a stereotype of the Canadians, the American counterparts on the trip back were equally characteristic in their brutalizing nastiness.  This was long before 9/11, and we weren’t hippies with love beads and long beards like in the 60s either.  Violence is popular in America.  To many people, often, it feels good, cathartic perhaps.   

The rabbi’s invocation of the value of prison as a place where the guilty may be motivated to a penitential thinking is an invocation of an idea that fits our literature but is at odds with reality.  The reflection must remain, sadly, the prerogative and task of the rest of us.  Prisons are not designed to cure people (nor are mental hospitals, despite what ever may be said)  but to separate them — from society or the rest of us, and from their own potentialities, presumed to be only negative.  Their purpose is to separate, control, and destroy.  

This same rabbi is fond of saying that anti-semitism is a ‘disease’, and now, he informs us, so is the racism that in conjunction with the intrinsic violence of policing has led to numerous killings like those of George Floyd. He has said that anti-semitism will always be with us, precisely because it is a disease. I take this to mean that what we rightly call evil has no explanation. This rabbi has also said that ‘science’ cannot inform ethical thinking as ‘religion’ can. But it seems to me that racism and anti-semitism do have explanations, and we ignore them, or refuse to inquire into them, at our peril. I would note that, first, if anti-semitism as a form of thinking is a theory (or several related theories) that purport to explain what ‘Jewishness’ is, it is quite possible that it is not unrelated to ‘positive’ theories of Jewish identity. That is, they might hate us for supposedly exhibiting qualities that we might actually affirm. (Here the possibilities include: (1) the attributed property is asserted either truly or falsely, and (2) if asserted truly, it is either good, bad, or neutral. The argument that there are no Jewish traits has the convenience of serving as a defensive objection to all prejudices, but the inconvenience of invalidating Judaism itself, while making the Jews a people like every other, when in fact they are only a nation like any other in being a nation, but they are unlike almost every other in being oriented to things that they have always held to be more important than being ‘of’ or ‘from’ certain ‘natural’ givens like the nation’s territory, language, and its inhabitants as living bodies. Certainly, Jews have often been hated for reasons that they themselves have tended to affirm as good.) If understanding anti-semitism illuminates Jewish identity (just as understanding capitalism might shed light on what it excludes that might well replace it, as any crisis brings into light the terms of the thing now rendered problematic), the reverse might also be true: If we want to understand why some people hate us, we should first understand who we are (and wonder if they hate us not because our values are wrong, but because theirs are). There are, certainly, attempts in philosophy, history, and social science to understand anti-semitism and things like the Holocaust, and they are vital. We cannot responsibly maintain that an historical series of events has no explanation; historians seek these explanations, and we should at least want to know what they are or might be.

Secondly, not only was the metaphor of evil as caused by biology (disease or genetics, and so motivating either correctional treatments or social exclusion and elimination) a dominant trope in Nazi discourse, so that using it ourselves could lead us to suspect that in doing so we are “giving Hitler posthumous victories” (Jewish philosopher Emil Fackenheim’s famous 614th commandment being to not do so, principally by just willing to ‘be’ Jewish and live lives that draw on our own particular traditions), but also the metaphor of evil itself as explanation for social injustice is one that may be best regarded today as problematic. Certainly, it is troubling that Judaism shares not only with Christianity and Islam, religions of faith and empire that are much more authoritarian and moralistic (even when they, as in Protestantism, try not to be), this thinking of good and evil, and the potentiality to merely exclude evil without trying to understand it. It also shares this, of course, with anti-semitism. Thus, a Jewish thought or one that aims to be critical of those tendencies in societies not wholly unlike our own that may have led to things like the Holocaust, must want not only to theorize correctly what it is to be Jewish, but also how we should think today about good and evil. The Christian ‘West’ was historically influenced by dualistic (Gnostic and Manichaean) tendencies to treat evil, and perhaps by consequence Being itself (what is) as an autonomous force (in Christianity, this became the figure of the devil as principle of evil, a figure that is essentially absent from Judaism) that the good must fight a kind of war against. The centrality of philosophy in the West, at least until recently (it still applies in France, though it never did in America), meant for the association of good with “reason” that destructiveness might be associated with “madness” as reason’s other, the principle it excludes and is opposed by. One idea of madness is just that it cannot be explained. So there is an idea of evil, or certain forms of it, as inexplicable. This fits a social world that excludes intellectual inquiry or discussion, as the business world does, particularly in America. The cliché is that the American mind is practical, not theoretical. I think we cannot afford not to be. We fail to understand what motivates people like Derek Chauvin at our peril. It is true that putting someone in a prison is excluding them from mainstream ‘society’, and separating them from most of what they can do, because a judge or judging council (jury) has found, rightly, that their most significant potentialities are to do things that we rightly prefer to prevent and stop from happening. By putting someone away, we say, in a sense, we don’t want anything to do with you, and it is easy to translate that decision into the implicit statement that we don’t even want to think about what drives persons like you to commit crimes like yours. But just as particular complexes, let’s call them that, of personality, which is what the anti-semite claims to hate, may exist and may be worth affirming, as well as in danger of being violently negated, so too evil has a connection with good. Judaism insists on this, because of the radical unity of God. Thus, for Jewish philosophy (and mysticism), moral dualisms must always ultimately be resolved into a more primary monism. Evil must be in some (interesting) way not just a failure of the good (or a refusal of it, if it seems radically opposed to and outside it: this is the difference between ‘sin’, which means failure and mistake (‘missing the mark’ aimed at by a good will) and evil properly so called) but a possibility of Being itself considered as in essence good. This means that we must want to understand it. And we do. Judaism has a unique relationship to law, in that it is not only a reflection of social authority and its potentiality for violence to enforce its will, but also a specification of good and an invocation of God’s presence. The Hebrew word for commandment, mitzvah, is understood by Jews to mean not what opposes desire but what realizes it. And so we study the laws, something the still dominant Roman culture in certain ways makes impossible (there are too many laws to know, and ignorance is no excuse not because you should know them but because your moral failures are, independently of legal knowledge, evidenced by your ‘violation’ of a law that only the authorities need to know). We study laws and stories from which we draw, respectively, our morals and ethics. (Morality is what must be done and not done; ethics is the posing and pursuit of the question of the good life, and these two things are always connected but are irreducible to each other, which is why we have both holiness and history; a society without ethical inquiries, which would also be without a politics, would be a static one, and this would be visible in the absence at least from the popular mind of literature and the arts as well as anything like philosophy, which poses the questions explicitly). It is part of the structure of commands that they determine behavior in a binary logic similar to that of the truth and falsity of statements. Thus, to every immoral act there must correspond a morally authorized and correct one. Sometimes this is obvious, at least to those of us who are ‘sane’ in the legal sense of knowing the difference between right and wrong (that is, making such a distinction at all). Sometimes it needs to be made more obvious, and legal proceedings and judgments can be useful for that. This is why the trial of Derek Chauvin had to be conducted in public. There is only so much to be understood about why Mr. Chauvin did what he did; that is, how it could seem to make sense to someone like him to do something like that, and to want and choose to do it as he did. There is more to be understood about why this use of violent police power continues to be a possibility in our society. Calling this a disease achieves little more than calling it bad. But we need to understand it in a way for which medical metaphors are very inapt. The danger of the use of medical and public health metaphors to account for what opposes us is that this becomes a purely defensive manner of affirming that we need think about how we ourselves want to live. It’s true that most of us don’t need to learn anything new to realize that we would never want to do what this man did. But if we think what our enemies do and want to do has no explanation, then surely what we do has no need of justification, and there is no question to ask ourselves. We don’t need to think, because we know. Judaism refuses this, if not in every instance, generally. I think this style of thinking explains the otherwise uncannily puzzling fact that much of the discourse about the Holocaust in the Jewish world has affirmed rather than calling into question forms of nationalism that are so uninterested in problematizing anything that Jewish identity itself is thought of in the same naturalistic metaphors (biology and nationalism) that the Third Reich used against us to such effect. In sum, evil is not a disease. In fact, it’s fascinating, and should be.

To exclude evil by eliminating those people who do or ‘are’ evil: this is why we have prisons (and mental hospitals, which are not an alternative to, so much as a form of, them), and it is also what a war conducted as crusade or holy war might do. It is also what the Third Reich did. This historical event placed some things on the philosophical agenda, in a way that neither the extermination of the native American peoples nor the enslavement of the Africans did (they pose other questions), and these questions include the idea of a government that aims to maximize the “health” of its citizens, and the idea of a holy war that would eliminate evil, as well as the ideas of evil and good that make that possible. In Jewish and Christian traditions, the book of Joshua is one of the most precise accounts of this. The idea of a distinction between good and evil may (or may not) itself be one that merits being called into question, but if it is not, the way we have understood the relationship between them certainly is. The Holocaust cannot be explained, as conservatives do, by merely pointing out that being Jewish should not have been considered a crime (or an illness), and thus Jews in particular should not have been degraded and eliminated in this way, though some people might deserve to be. The idea here is that of crime or, more to the point here, social deviance, as warranting (absolute) exclusions of the persons associated with it. The question here perhaps is how we treat deviance from our mores and values, and so too therefore, how we affirm those values. The dominant conservative liberal view today seems to be that we do so merely by affirming our identity, that is, by just being who and how we are, and affirming and defending that absolutely. It is certainly consistent with the anti-intellectualism so popular in America today in particular that the institutions of the market on the one hand and policing and warfare on the other invite people to affirm absolutely their own identity and will, with no thought needing to be given to anything. To this correspond institutions based on enjoyment on the one hand, and exploitation (the extraction of value from things people do) on the other. The class of people whose value to the rulers is only their utility in generating profits can be further divided into the useful and useless; since the latter pose risks as they likely will find their interests opposed by those who rule them, they can, logically, be eliminated. Along with whoever is thought outside the normality and propriety, figured perhaps as health, of those whose identity or being is to be affirmed. Until this is much better understood, we can predict that there will be other forms of barbarism that, whatever their scale and scope, and however their violence is assessed in its magnitude, share with the Holocaust itself certain traits. It is doubtful indeed that the tendencies towards this can be combatted using the same techniques. While it is true that American psychiatry today was influenced by Jewish refugee psychoanalysts from Europe who thought that their discipline could be used to combat evil, we surely know that controlling or eliminating everyone who is thought to have a mental illness or evil disposition (without which the Talmud famously says no man would ever marry or build a house) will not achieve the result of preventing future Holocausts. What it will achieve instead is what we already have: a global police state that suspects everyone of criminal dispositions, attributes these to some mysterious causality internal to them as this state’s prospective victims; in other words, a global capitalism that “hates everyone.” While we cannot condemn anyone, Jew or gentile, for just wanting to live their lives in peace and mind their own business, at least if we are going to continue to want to entertain and assert statements about how the world is and what ought to be done, that is worse than inadequate.

The trial and conviction of Derek Chauvin was necessary, but the social change we need will not likely come from the criminal justice system.  That system has been with us for some time, and it can be used, like any tool, more or less well or badly.  There are two problem with the police and prison systems as institutions: the things they quite regularly do, and the choice of targets for these things to be done to.  If we think the later without the former, we will have a critique of racism, including situationally as well as attitudinally, but not necessarily of the violence associated with it.  These two things: forms and means of violence and their objects, and subjects, expressing their will through it, must be thought together.  The Holocaust itself provides a model of what is wrong with thinking only about the ‘who’ and not the ‘that’ and ‘what’ of violent injustice.  Auschwitz was not a refutation of Judaism, and contrary to Jewish philosopher Emil Fackenheim’s famous 614th commandment, that Jews nat least must refuse Hitler any posthumous victories by at least affirming their own Jewishess, the affirmation of the identity and goodness of the oppressed (or the justice of whatever projects is identified as proper to them) does not suffice.  This is because the Jews were and others who shared their fate were degraded and dehumanized and then eliminated as human beings.  What makes this genocide a horrible crime is above all that it is something that could happen to anyone.  What happened at Auschwitz was less a separation of many human beings from their Jewish identity than it was a separation from their humanity.  And if Derek Chauvin deserves any mercy, and I do think he does, though I care much less about that than using the case to send the right message, it is not because this man, now irrevocably identified with the crime that defines him and will remain an essential attribute of his name for ever, deserves to not suffer a fate as painful as that he inflicted on Mr. Floyd, but rather just because he is also a person with both the animal sentience and judicable dignity of persons.  If any person in America today deserves the death penalty, it is Derek Chauvin.  If he doesn’t, it is not for any reason particular to him but because no one does. 

Liberal political theory cannot critique forms of social power.  Instead of such critique, it offers limits.  Limits to power, in the name of the liberties that permit those otherwise subject to external powers to develop their own potentialities.  Liberal theory is constant with a certain theology.  This theology rests on an identification of divine good with secular power.  A Roman-inspired legal positivism that absolutizes authority is one consequence, and theological dualisms are the other.  I have discussed some of these problems elsewhere.  For now, let me conclude by affirming that we cannot manage to live as a society without justice, but the task facing us as a people is not so much mone of justice as one of liberation, becoming free. 

And that requires the invention of new possibilities of social life.  Ending prisons and policing as we know them is not, in the wake of Chauvin’s conviction, less urgent but more so.   As surely as I am willing to seeing people like him punished for crimes like his, hoping that more police officers think twice before using that kind of murderous vioelnce, and using it against black Americans in particular, though not them only, I would be delighted to see 1,000 prisoners being held for victimless drug crimes or held longer and more painfully than they would be if they were white, freed, even if the price had to be that among them would be one man like Derek Chauvin who perhaps should not be allowed ever again to breathe freely or even at all.  It is that liberation I desire above all, and this is not forgiveness or mercy, nor is it justice exactly, but it is consistent with the American values of the pursuit of happiness and freedom.   Mr. Chauvin was part of an institution that exists to limit and destroy both of those things for many Americans.  I don’t want to destroy such destruction so much as leave it behind.