It is my contention that in order to solve the problems of the criminal justice system it will be necessary to examine the most basic assumptions of society. One of these assumptions involves law and the social contract. As Kosko [1] says, "Society rests on the social contract.... We start with law. Law is the set of fuzzy moral claims that society or the state backs up with force."

I do not agree that society rests on a social contract. Human society rests on our "tribal" propensities coming out of 2-4 million years of life as hunter-gatherers living in small groups roving freely across the savannah and the conflict with our "wisdom" potential achieved with the evolution of our language ability. The conflict between our propensities and our potential has laid at the core of history for at least the past 10,000 years. They make for interesting reading, but can easily lead one not aware of what is going on into bouts of depression.

In the final analysis society rests on the innate human need to join together in relationships with other people. When individuals are raised in a nurturing supportive environment they project a feeling of love into their interactions with other people. When they are raised in abusive relationships, without some kind of support, they project a hostile, defensive behavior into their relationships.

To me the concept of a social contract is not only meaningless, it is pernicious. It may have appeared as a useful fiction when it was first proposed in the late 1700s, but I think it leads in the wrong direction.

1. Its deadly nature lies first in its utilization of punishment to enforce its rules. Punishment is self-defeating because it leads to ineffective models and behaviors such as fear, guilt, innocence, adversarial, rigidity, and from a practical standpoint "might makes right," etc.

2. Second, because punishment produces effects which sometimes appear to be what is desired, but usually does not, it reinforces superstitious behavior (i.e., seeing events as being related when there is no predictive value between cause and effect). Therefore it encourages addictive behavior (behavior which doesn't produce the desired effect, but is maintained because it is perceived as though it does.) To examine some interesting ideas related to cause and effect and the criminal justice system click here[2]

3. Third, punishment distorts the value of law which is a process of clarifying social behavior so that individuals can work most productively and safely together for everyone's wellbeing. But when punishment is introduced law becomes an end in itself. When persons don't follow the law the focus is directed to this rather than the relevant issues: Is it a bad rule? Is the person lacking some fundamental knowledge about themselves or society? Etc.

4. Fourth, this approach makes one responsible to obey rules they neither had a hand in developing nor have the power to change. Legislative bodies are encouraged to be naive and irresponsible and willy-nilly enact any crazy rule that some strong constituency demands. The machinery and processes are so convoluted, complex, and disconnected that it is impossible to impact the situation in any constructive way. Anything but superficial changes are almost impossible to introduce. When revolutionary laws are passed their effects are so diverse and multifaceted that the goal that motivated the change frequently gets lost and how they are enforced may actually cause the opposite effect they were aiming for. The way laws are interpreted and enforced is changed by judges who re-interpret the past and draw different conclusions. Usually these changes are for the better, but can be for the worse. Unless we can find a whole different way to utilize law, we are doomed to consume the lives of countless generations working piece-meal for change.

5. Fifth, the way laws are used misfocuses our minds so we get caught in a web of deception rather than being helped to become change agents for the good of humanity. In the process of working to change how laws are used our minds get locked into the mind-set that forms the current model of how laws are used, and what they are supposed to accomplish. We must use law to change law. Soon our concentration is diffused and our energy is drained. We get caught in a double bind. Current laws are wrong. They need to be changed. We must use law to change law. We become victims of the very thing we are trying to avoid! We lose our ability to focus on a totally different paradigm based on the model of the Enlightened Person in an Enlightened Community.

The myth of the social contract may have seemed necessary because of the way philosophy, science, religion, and ethics have been perceived. But with a Science of Ethics that better defines both science and ethics, we will have a foundation upon which an Enlightened Community made up of Enlightened Persons can be erected.

Obviously, from a practical standpoint we will be forced to change laws and to develop alternatives. But we must never lose sight of the fact that an Enlightened Community and the Enlightened Person does not utilize current assumptions about law.

As Kosko says, "Law is a fuzzy labyrinth. A legal system is a pile of fuzzy rules and fuzzy principles." [1] And as I have said many times the current assumptions about law are not appropriate for an Enlightened Community made up of Enlightened Persons. It might be okay to have rules such as laws, but what they mean and how violations are treated would be totally different. There would be no "punishment." There would only be research/education/ therapy/ medicine/ etc.

Some of the assumptions laws are based on are as sacred to civil libertarians as to fundamentalist Christians. Therefore, it seems important that we examine in as much depth as possible the underlying assumption of law. One of these assumptions is, What is the essential nature of human beings? Are they good, bad, or something else? Another is, What is the goal and purpose of the criminal justice system? Also important are those assumptions relevant to our adversary system as it is used in our courts. But after exploring all these assumptions we are still left with the critical question, How can we do things in a better way?

1. Let's look first at the question, What is the essential nature of human beings. Are they good, bad, or something else?

As pointed out in Volume I, Chapter One, I believe that human beings are neither innately good, nor innately bad, but are innately social animals. Their most basic need is to be part of a social group and to be accepted by that group.

2. How did we get to our current situation?

Part of the problem of our criminal justice system and everything related to it results from the accident of three aspects of English history[3]:

a). "Criminals" were killed by hanging for even petty crimes in early England. (That is, these primitive people believed in punishment as an effective way to handle human behavior.) Because the punishment was so severe it became very important to a segment of society with compassion, sensitivity to human suffering, belief in justice, etc. to insure that an innocent person not be convicted.

b). The government regularly consisted of despotic rulers, and,

c). The moral and ethical foundation of society was based on Christian principles which are fundamentally erroneous and inadequate for human beings, and enforced by a dogmatic, authoritarian hierarchy.

Because of the latter two points it was considered by enlightened intellectuals that society would be best organized as though there were a natural adversarial relationship between the individual and the government[4]. From these early beginnings we come quite naturally to today's situation where:

1. We have courts which are largely a travesty of justice with their rigid procedures, "protection" of the accused against self incrimination. A play in which each actor has a role that is totally unrelated to truth, justice, love.

2. Individuals are supposed to defend themselves against society. Where they are encouraged (nay, forced) to lie, misrepresent, and use the weakness of the written code of laws to escape vindictive punishment. Persons with wealth and power rarely are found "guilty" because there are sufficient loopholes for the knowledgeable, and well-connected.

3. In order to "succeed" in the criminal justice system (i.e., be found innocent) the person's best self is suppressed. They are therefore, less able to be a socially responsible individual who recognizes that without trust and mutual concern between persons and their society, one is cut off from the prime foundation for an enjoyable and meaningful life.

4. We use jails/prisons to punish the "guilty" thereby incorporating an inhumane and psychologically erroneous procedure which to the degree that it works turns out non-functioning people and to the degree that it fails releases individuals who are a greater threat to society and themselves than when they went in. The foregoing occurs because it is the inmates against the guards who are there as society's representatives. Jails/prisons stimulate the formation of anti-social gangs for the self-protection of the inmates and serve as a recruiting ground for organized crime and a training ground to turn the petty criminal into a vicious and effective social parasite.

5. Persons are taken totally out of productive activity, warehoused in enormous and expensive structures, having guards 24-hours per day, 7-days per week to keep them incarcerated in a brutal environment where they become further alienated from society. This alienation encourages many to consciously seek revenge against a society that denied them the opportunity to be part of it. Others struggle with the initial problems that caused their criminal behavior plus the additional ones promoted by incarceration.

6. We use law -- that fossilized system of rigid, outmoded ways of looking at people and their relationship to society -- to try to solve human problems. When looked at objectively we find that "bad" laws are themselves the "cause" of much crime; e.g., over 50% of burglaries in many areas result from our inability to deal with human problems, where suffering people who have turned to dope to dull their pain are transformed into double criminals since they can only support their habits by criminal behavior. (Not to mention the billions of dollars organized crime derives from filling these needs.)

7. Society attempts to achieve its ends by punishing. But, before you can punish, you must apprehend. So, we hire fallible human beings, dress them in storm trooper uniforms, give them guns, nightsticks, handcuffs, and send them out to catch lawbreakers. Although punishment is a totally self-defeating procedure it can under certain conditions change behavior in what at first looks like socially desirable ways. But, for punishment to work it must be certain, and follow soon after the infraction. Alas, the police are too few. The lawbreakers too many. The courts too slow. But, worst of all punishment produces dependent people who need simple rules imposed from outside to determine their behavior. Therefore, they are limited in their growth and development.

It's not that the system worked any better in the past. It never worked. It is just that it appeared to work in the past because most people lived on farms or in small communities where they had connections with their family, friends, and the community was basically supportive. Under these conditions people are naturally law abiding. However, as society becomes urbanized and people more isolated, the basic errors upon which our society rests become more obvious and the effects more far-reaching.

The thing that powers the criminal justice system is the same mythology that powers our industrial/economic system; i.e., material things bring happiness and the goal of life is to amass great gobs of money and the things money can buy.

Criminals think they have found an easier way to achieve society's goals than the physician, attorney, bank president, etc. What many of them never realize is that they have been duped and conned. Material things are practically irrelevant to happiness. People who basically abide by the law are able to develop friends, families and involve themselves in various kinds of organizations which give them recognition, support, even love and physical affection. The criminal is denied key elements of these things and therefore loses what life is really all about. The essence of the criminal life is paranoia. Everyone is the enemy. One's only "friends" are other criminals with similar personality problems, ways of looking at the world. Not very good friends!

What is the proper relationship between citizens and their society? Is it an adversarial one as proposed by early political theorists? Or, is it a cooperative one as modern psychology would suggest?

My position is clear since I say that there is no conflict between an Enlightened Person and an Enlightened Community and that producing both of these is the highest goal of an Science of Ethics. However, introducing change into our criminal justice system will not be easy, though it is essential that we start as soon as circumstances allow. See Chapter XXIII.

How might we revamp our criminal justice system so that at least in some instances the most wasteful and destructive aspect of current procedures can be avoided? Some of these are examined here, "Could Science Improve the Criminal Justice System?" Many current procedures are a travesty of justice. They make a mockery of social and individual needs.

It seems to me that in an ideal system the criminally anti-social individual when once detected can never be "released" until they are rehabilitated. To deny them social concern encourages the breakdown of the whole social fabric not to mention the destruction as a social being of the individual involved. A prime goal must be to find a way of connecting with these persons in such a way as to help them deal with their problems in a whole different way. On one level a Science of Ethics must work to develop structures to help all persons who need it. Such structures would be independent of the criminal justice system, while at the same time protecting society from the anti-social side of the "criminal" personality.

At a different level we might explore setting up an alternative system within the criminal justice system. This would provide two ways of dealing with law breakers. One system would use the current procedures where persons would be guaranteed their "rights." They would go through the court system, have trial by jury, where the adversary procedure would be used, where the person would be sent to prison or otherwise punished for their wrongdoing if convicted, or "freed" if they were found innocent.

And, the other system would utilize the insights of a Science of Ethics, psychology, sociology, anthropology, medicine, etc. This approach would encourage intensive research to establish a procedure whereby the person would be rehabilitated (or, more correctly, pass through a procedure to ensure that they would become a contributing member of society). This help may necessitate separating the individual from society. If it does it cannot be for a specific length of time. It must be until the individual is cured and a lifetime if they cannot be. One cannot say ten years of confinement for this, and twenty years for that, and six months for something else. To abandon support before individuals are cured will not benefit either the individual or society.

However, separating the law breaker from society cannot be looked upon as being enough. It is society's responsibility to find a cure for the individual and it cannot be satisfied until it does. It must also allow the opportunity for individuals to enjoy worthwhile and useful experiences (to work to achieve a SFLIHM) during their confinement to the degree that this is possible. Law breakers should be able to experience the joyful activities that enhance their humanity even though confined. Warm, loving relationships with physical affection and sexual fulfillment must be available. A creative outlet must be open to them: building, painting, discovering, planting, etc. To deprive individuals of the foregoing is to deprive them of the only thing in life which makes it worthwhile.

At one level this approach is not concerned with guilt except in a therapeutic sense. The goal is to lay bare the person's "soul" so they can be reborn. Therapy, "lie detectors," sodium pentothal and other "truth serum," hypnotism, Positron Emission Tomography, etc. would all be used as circumstances indicated. But everything learned would be used jointly with the individual to help them move toward becoming their best self in order to be free in every sense of the word. To the degree that the therapy/ treatment is effective a part of the individual is "killed"; i.e., changed. This is the part of the personality that is self-destructive and anti-social. This might best be thought of as a re-birthing, creation of a new personality. This could be an exciting idea particularly for one who has suffered greatly as a result of who they are. This is where understanding the nature of an "I" is helpful and provides a powerful tool for working with people.

Building must begin by utilizing the part of the individual that is positive and socially oriented as well as concerned about the self or "I" in a long term way. But, the fact remains that to the degree treatment is effective the person is changed. And all of us resist change no matter how desired the change is to some aspect of our being. Part of us sees the change as threatening and works to prevent it.

Persons in this alternative system would waive their "rights" and would go through counseling, retraining, and whatever else was necessary to ensure that they would be able to fulfill themselves and society. They would side-step involvement in the courts, jails, and all the other legal paraphernalia that has grown up.

Perhaps, we could expand the current use of the concept of "insanity." At the essential level anyone who commits a criminally anti-social act (against an Enlightened Community) is suffering from "diminished capacity/not knowing the difference between right and wrong."

In this growth oriented system there would be cooperation between the person and society rather than an adversarial relationship. Using this approach the person's involvement in the wrongdoing would be explored in great depth and detail. The essence of the process would be the person's "testifying" against themselves. But these "confessions" would not lead to punishment. Rather, they would be used to help the individual develop in order to achieve maximum creativity and productivity and thereby live in harmony with themself and with society. The foregoing harmony need not be the harmony of the conformist, but, perhaps, the harmony of the rebel. By focusing energy onto areas that need to be changed their efforts would help to improve society rather than to make a bad one even worse.

Within this system persons would be helped to improve their useful abilities rather than be taken totally out of productive service. If their difficulty is related to not being able to read or write that problem would be attacked directly. With a Science of Ethics all problems would be tackled at their roots rather than putting all the energy into attacking symptoms. Law breakers would be helped to realize that to be an Enlightened Person they must help change those parts of the society that keep it from becoming an Enlightened Community. They would be helped to realize that it is to their best interest to live in a society where all people obey the law. In addition they would be helped so they are able to accomplish the foregoing by changing bad laws when necessary.

However, at the same time we need to recognize that in many areas law and pre-established rules are a poor way to deal with human problems. The area of conflict resolution moves toward developing a whole different approach. An Enlightened Community should encourage emphasis on mediation of conflicts rather than reliance on laws. (See Chapter XXXIII.) We should support in whatever way we can the individuals involved rather than being forced into a mold that considers only a small part of the issues and these frequently not the most important.

But, returning to the idea of using "insanity" as the basis for an alternative approach to dealing with criminal behavior. The critic might be skeptical of this approach. It could be pointed out that those currently ruled "insane" receive psychological counseling, end up being incarcerated in "hospitals" rather than prisons, and frequently released to produce further chaos in themselves and society. It is not clear to me whether the recidivism rate for the "insane" is lower then for the "criminal." However, I would be surprised if it currently differs very much.

Of one thing we must be very clear. We cannot reform the criminal justice system without reforming society. Unless we can produce a society where the focus is on individual well-being and fulfillment we will never break the cycle of criminal behavior. Dr. Hank Giarretto has shown us the way to break self destructive patterns. A therapeutic community that is a true community lies at the core of getting from the ineffective, erroneous models of today (jails/ prisons, individual therapy, etc.) to the better world that is needed. See Chapter XXIII. A.

Dr. James Prescott's work on the importance of nurturing touch and somatosensory deprivation -- see Chapter IV -- provides some additional clues that may help us get a handle on criminal behavior and rehabilitation. He helps us see clearly that to make a better world we cannot rehabilitate just the individual, but must rehabilitate society, too. It seems essential to assume that every criminal act proves a deficiency in society and something in need of correction. The "guilty" party must be helped to establish or re-establish their ties with society and learn how to fulfill themselves in ways that are most satisfying to them and to society. There is always a social component when a person commits a criminally anti-social act, and in so far as society is to blame, it must be altered. Probably, society's greatest source of blame is that pointed out by Dr. Prescott -- dearth of somatosensory stimulation: cuddling, fondling, hugging, rocking and all other forms of loving touch. Until we can build a society that provides each infant this kind of love and acceptance, we will probably have to live with a high level of criminally anti-social behavior. If a person is denied their mammalian birthright of loving touch, they may be expected at times to lash out viciously to "get even" with those around them.

There is still too much we do not know about human behavior and this includes human behavior as it relates to criminal acts. We need to learn how to avoid producing criminals. Part of this learning must come from studying every law breaker in detail to learn in so far as possible what was behind their criminal acts. And, this study must not be performed as though we were studying a fly, or a rat. It must be done with love, sensitivity, and mutuality so that as we learn we also help the criminal (who is also the victim of the behavior) to learn and to move toward becoming an Enlightened Person.

Dorothy Otnow Lewis in her book, GUILTY BY REASON OF INSANITY[5], shares with the reader observations made over a life-time during which she studied murderers in an effort to understand what differentiates those who kill from those who do not. Her final conclusion is that, "Given certain kinds of neurologic and psychiatric problems, and being raised by violent, abusive parents, just about any of us could be turned into a killer. And you don't need to be born with those problems; they can be acquired....No one is immune. It could happen to any of us."

It should be obvious that an important focus is to work with people before they perform criminally anti-social acts up to and including murder. We must use our knowledge and resources to assist individuals who lack the necessary components for a meaningful life to help them in whatever ways are necessary to avoid those paths which are likely to lead them to criminal behavior, or to making criminals out of their children. Part of this is based on the hypothesis that most criminal behavior is not totally spontaneous and accidental. Rather, it results from conditions that the individual is aware of. These conditions are painful to them and they would like to be able to control these patterns. Therefore, under the proper circumstances they should be willing to explore any resource they believe would help them.

Our primary goal then must be to develop tools to help individuals fulfill themselves in ways which are satisfying not only to them, but to the rest of society. Unless we can help them build the missing links that have cut them off from society, then we cannot hope for much success in our efforts to rehabilitate. We must learn what it would take to aid them in developing the social aspects of their personality and diminishing the anti-social side.

Part of the solution involves building support groups to help these individuals. Many persons (not just those who commit criminally anti-social behavior) need the help of other people to deal with the problems of every-day life. Society needs to have facilities where people in need can live and receive the help, including emotional support, they require in order to function as positive, socially contributing people. We need to focus a large amount of our resources on learning how to rehabilitate individuals. (It might be necessary to spend as much on this effort as is currently spent for an air craft carrier!) (See Chapter XXIII. A., "Child Sexual Abuse Treatment Programs." This program is already achieving many of the goals presented here and doing it in a simpler and more straight forward way than discussed here.)

So, we return to the questions with which we started! What is the proper relationship between citizens and their society? What is the basic nature of human beings?

There is little question that in a "bad" society there is an inherent conflict between society and the individual. In fact I would say any society in which there is a destructive conflict between the individual and their society, by definition, is "bad." So, are we ready to make some carefully protected steps toward recognizing that there is no conflict between an Enlightened Person and an Enlightened Community?

Christians tell us that it is impossible to have an Enlightened Community. They teach that fallible human beings cannot produce a community that we can trust to look after the best interests of all its citizens. Skeptics tend to agree.

Both groups may be right. But, the question is important enough that we should explore the matter in as much detail as we are able. To me the Enlightened Community is one that never loses sight of the idea that it is the individual person who must be the focus of ultimate concern. Unless each person has the knowledge and the freedom to direct their own life and make their own errors, we have not produced an Enlightened Community, but an authoritarian one, no matter how subtle the coercion and controls.

So we see that all of society is one fabric. We cannot examine one aspect of society without looking at the bedrock upon which the whole society rests. Until the Science of Ethics helps to clarify that foundation and show how to build a humane world that nurtures every individual, we will all suffer from that lack.

Laws used to justify punishment are considered to be essential in primitive civilized societies (advanced Not-Yet-Enlightened Communities) such as contemporary European and American ones. Because these societies are not able to produce Enlightened Persons the accepted alternative is to set up certain courses of action as right and punish those who will not or cannot follow this path. In a truly civilized society (an Enlightened Community) laws would be guides for social behavior. Violators and transgressors would not be punished, rather helping hands would be provided to assist them in making whatever change is necessary no matter how small or how large. This process would make the necessary tools available to behave more responsibly. In an Enlightened Community justice would be ensured and tyranny prevented by a technique that is more trustworthy and humane while at the same time being less wasteful and destructive than prisons/ jails, punishment. It would be possible to solve a problem by a better method than punishment for failing to follow a written code. The foregoing will be true because procedures will exist to help each person achieve a SFLIHM.

The concept of law as traditionally used focuses on two primary points: 1) that the person was capable of intent, and 2) that they did in fact perform the act. The foregoing demonstrates the primary deficiency of this approach. It is concerned with blame, and has limited interest in understanding cause and effect. Therefore, it gives us very little hope for future improvement. It is here proposed that being guilty and having intent are only part of the picture. Knowledge and ignorance are also of prime importance. The foregoing allows an avenue to be opened to prevent acts which actually should not be performed. In most cases the need is not to guard society from individuals but rather to guard individuals from their own ignorance to help them avoid doing things that are not in their long-term best interest.

Murdering, stealing, lying, hating, dissipating, using drugs, etc. are symptoms. These are things which exist because of conditions which should not exist. And this means a need for changes in society. Since I hold that a society is responsible for all of the acts of all of its citizens [6], it is critical that this responsibility be accepted and necessary changes undertaken. We must work at all times in the most strenuous manner to eliminate these conditions from the face of the earth. Saying that murder is a crime, or is immoral in my mind misses the point. Murder must not be performed for reasons far more fundamental than being immoral, or a crime. It is an act that becomes a millstone preventing them from achieving Enlightenment, or if they do it remains a searing pain for the rest of their days.

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  1. FUZZY THINKING, Bart Kosko, p. 262, Hyperion, New York, 1993.

2. THE NEW YORKER, "Investigations Under Suspicion, The Fugitive Science of Criminal Justice," Atul Gawande, p. 50-53, 8 January 2001.

3. HISTORY OF ENGLISH LAW

4. A knowledgeable author that deals with the adversary issue from a somewhat similar perspective to mine wrote, in THE HUMANIST, "The Real Crisis in the Courts," Franklin Delano Strier, March/April, 1988.

5. GUILTY BY REASON OF INSANITY, Dorothy Otnow Lewis, p. 286, Fawcett Columbine, New York, 1998.

  6. VOLUME I, SCIENCE OF ETHICS, Chapter Two, Third Way of Wisdom.

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