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Why do we have tribunals?

When Aristotle said that "the brain is an organ of minor importance" he was right. Paradoxically, unknowingly. What I mean is that fundamental relations between humans are summarized in the prisoner’s dilemma and there is no rational solution to this. Therefore, to survive as a species we have to become civilized, meaning that we have to introduce some irrational rules into the gambling game of life.

We all have different rules that we want to implement and we have to sell them to the others, convince them it is our rules that will best serve the common interest. Despite the many differences between them, when we trumpet our rules, we all pretend that they are just. At the same time, we pretend that we will respect the rules we have agreed upon, even if we lose the current game. But only the invention of courts of justice can make the rules rule.

The human condition
Mother Nature, or Father God if you wish, condemned us to bump into each other. We are not each possessed of our own islands and the means to survive on them alone. We live amongst other humanoids and, of necessity, interact with them. Even the immortal Olympian gods encountered conflicting interests, so we may assume that we, as mere mortals, are much more eligible for strife.

Some, like Heraclitus, told us not to worry, that Polemos, the god of war (and, possibly, of civil battle), would take care of everything: "We must know that war (polemos) is common to all and strife is justice, and that all things come into being through strife."

But, if war were the only principle, we wouldn’t be reading Heraclitus now, as the last and sole victor of all the conflicts could not reproduce herself alone. And even if she could, she would have had to kill her baby to be loyal to this "war solves all your problems" principle.

The rules of engagement should be a piece of cake
We announce our own rules when we encounter others, so others know what to expect in any situation, even when we have not agreed on a set of common rules. For instance, we let others know that we are not going to kill them, other than in self-defense. Thus, any Muslim will know that a Christian has to obey the rules set down in the Bible and this knowledge is therefore public, an announcement of the Christian’s rules. This at least makes us predictable, which, is another necessity in the prisoner’s dilemma.

There are some rules that are adopted by all humans, even if they are not announced publicly. I have never heard of someone killing another person from another country, culture or religion, and when deceased’s family asks why, receiving the answer, "Well, I have never promised you or your dead relative I wouldn’t kill her." So we assume that there are some basic rules that everyone, everywhere respects. When we hold Ossama bin Laden responsible, we assume it. And in his responses he does not say that his basic rules differ from ours, but that he had an excuse for doing what he did.

Even though there are fundamental and universal rules that apply everywhere, such as keeping promises, telling the truth, not stealing and not killing, there are other rules that differ between individuals, groups, countries, religions, cultures and so forth.

When we disagree on some of the rules because others are stubborn or we are even more stubborn, we shout: "Well, these are our rules. We don’t give a fuck what you believe and we will follow those rules anyway!" This means that we accept being blamed for breaking the rules, even if we do not agree on them with the complainant. When bin Laden attacks us by saying, "Well, you don’t even follow your own rules!" he has a strong argument, even if some of his rules differ from ours.

Whatever these rules are, when we try to sell them to others, whether the rules are agreed or shouted, we claim that these rules are fair, or just. What do we mean by that? We mean that these rules can be subjected to a test that I will call ‘the cake procedure’.

When a fair parent has two children and wants to give them a lesson in justice, the parent allows one of them cut the cake and the other to have first choice as to which piece to take. Applying this test to morals would mean that humanoid John is allowed to chose a rule he deems just. Humanoid Mary is then allowed to chose her position in the game.

For instance, let us assume that John says that it is a just rule to allow citizen A to rob citizen B, but citizen B should not be allowed to rob citizen A. Once humanoid John has announced what his just rule is, humanoid Mary has the chance to chose her position in the game. She might chose to be citizen A and let humanoid John be citizen B. The rule then works thus: "Mary is allowed to rob John, but John is not allowed to rob Mary." Therefore, we have a great chance that John will think twice before announcing his rules. By dividing the cake in this way, we ensure that the rules are just.

This is what truly makes real justice real blind. The applied rules do not care whether John did something to Mary or Mary did something to John. The deed was right or wrong, independently of who did it.

This means that when we announce our rules and pretend that they are just, we pretend that they are not just crafted to give us an advantage in a prisoner’s dilemma game. When we do something to someone, we pretend that we would not change our mind about the rules if we were in her place and were the one to suffer of consequences.

In short, our trumpeted rules promise everyone that we will not do unto others what we ourselves dislike. And we promise that those rules will profit everyone.

When John announces that a situation is the way the world’s affairs should be, then we can test the justness of this statement by asking ourselves whether John could be forced to accept the same rule as just in any position of the game.

A promise is not enough
Having rules seems not to be enough. Having interests means having weaknesses. Thus by admitting that we have interests we admit to being weak. This means that we cannot guarantee respect for the rules just by promising it. And we are still a part of the prisoner’s dilemma, where it is rational not only for us, but also for others to cheat. Imagine that the other person is not as stupid as you are, for instance. But it is also rational to distrust the other person, so imagine that you are rational for once.

Furthermore, language is not that great an invention. We will always disagree about what we mean by a rule. Some will try to stretch a concept, others to tame it. Consider, for instance, that all the wars are started in ‘self defense’.

At the same time, we learn from the history of knowledge that the sceptic has never been beaten up by any sage other than herself. We humans have a limited capacity for knowing and bad instruments by which to discover the truth. Therefore, even if we agree on rules and conquer our flesh, we may still disagree on what happened, who did it, whether she really did it, or why.

When our loved ones are hurt or we are in danger, the blood leaves our brains and rushes to the muscles, in a reflex of fight or flight. This sometimes takes longer than an instance. And our instinct tells us to keep on the safe side. We have therefore a tendency to shoot first and ask later. But others also have this instinct and the instinct to create a safe environment for their relatives. The ‘shoot first’ instinct leads thus to a spiral of conflict.

Heraclitian morals do not keep our feet dry. When we are drowning, we wish the stranger passing by would forget the price of her designer suit and dive into the ice-cold water. I have never heard of any drowning Heraclitian shouting: "You got an unique chance to win the conflict, so please, please let me die!"

To be faithful to her own moral, in order to win, the Heraclitian would have to appeal to the usual moral concepts of the stranger, ask him to jump into the water and, after being saved, the Heraclitian would have to stab his savior in the back. The argument is thus self-defeating and being a Heraclitian, like being a Machiavelist, is tragically solitary, never enabling you to prescribe your rules to others. And nobody would acknowledge her wisdom.

Therefore, as soon as we use arguments instead of axes we pretend that we accept a solution to the prisoner’s dilemma by cooperating and not cheating. This is why good faith is one of the most important principles of courts of law and lying to a judge is considered a mortal sin. When you tell a judge that your goal is/was to obtain X, you can never be excused afterwards when you are discovered to have had another goal, Y.

A court of Law as a solution to the prisoner’s dilemma
In all this precariousness of condition, one invention seems capable of saving the day: a court of justice. The fundamental idea is that a third party should decide who is right and who is wrong. This party has no interest in the conflict and is trained in the (imperfect) rules we have accepted as necessary to establishing the truth.

Even if this party is not all-knowing, her imperfect knowledge does not disadvantage any of the conflicting parties. This means that if you lose because of a judge’s shortcomings, you will, on average, lose50% of the time and win 50% of the time. We would and should rather chose this gamble above the "nasty, brutish and short" life of spiraling conflicts.

Therefore, we are not only guided by clubs and machetes, but also by the idea that somehow, collaborating with each other will gain something for us all, it will serve the common good.

Morals, argumentation and any justice system are just a solution to the prisoner’s dilemma: they are nothing other than an answer to the question as to what to do when my interest conflicts with yours; cooperation would advance us both more than killing each other would, but if one were to break the agreed rules without being caught, it would bring her a greater advantage than cooperation.

Respecting the rules is irrational, because within the prisoner’s dilemma the most rational thing is to cheat. The human race has survived only because of this individual stupidity.

Power is not a solution
Life plays funny games with us. Sometimes we obtain more power than others. Sometimes the powerful are groups, states, institutions or sovereigns. Making laws and enforcing them only by power is not enough. "In the absence of justice, what is sovereignty but organized robbery?" asked St. Augustine.

This makes sense not only because power tends to corrupt, but also because the powerless are the majority. And in human affairs you are only as powerful as the weak allow you to be. The weak tend to believe, and an element of jealousy might play a role in here, that the powerful are unjust. In the absence of a perceived justice they, as the majority, can always revolt and seize the power. The French and the communist revolutions proved that when the masses take power, they will bring as much "Terreur" as any other kind of tyranny. Therefore justice is guaranteed only when the powerful, as individuals, groups, majorities or even institutions, are separated from deciding themselves what and who is just. The divider of the cake should not be allowed to chose the first slice, remember?

To complicate this, as Hobbes rightfully observed, even the weakest and most unintelligent humanoid can use a weapon to kill the strongest and the smartest. Today, when technology gives every individual a tremendous annihilation power for a couple of bucks, this is more true than it was in Hobbes’ time.

Thus, in civilized societies the powerful are separated from the decision of who is right. The haves are thus protected from the jealousy of the have-nots. The have-nots are thus protected from the corrupting weakness of power. This makes the invention of the tribunal arguably the highest achievement of civilization. It also makes it a necessary condition.

There are, of course, ways of thinking about civilization without courts of justice. If, for instance, science gave us enough material goods to satisfy us all or if a retrovirus modified our genes, eliminating our survival instinct. But as long as we fear death, and women, sports cars and chocolate are not in abundance, any consideration of civilization and justice necessarily entails the existence of judges.

Conclusion: Our group existence is a fight against the prisoner’s dilemma and to win we need to let third parties settle our differences. This is the irrational fundament of civilization.

Geredigeerd door Pascale Esveld
Published inFilosofieInternationaal RechtPolitiekRechtbank voor Allen


  1. jan bouma jan bouma

    Avatar van jan bouma
    Why we do have tribunals?
    – Die hebben we niet met het juiste mandaat.

  2. Ina Dijstelberge Ina Dijstelberge

    Avatar van Ina Dijstelberge
    De rechtbanken dienen echter wel erkent te worden door alle partijen. En daar schort het nog wel eens.

  3. mihai mihai

    Avatar van mihai

    In deel 2 zullen we zien dat je een rechtbank met geweld mag opleggen.

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