How did our behavioralists “know” this? Well, once upon a time, graduate students at Texas A&M assembled 141 undergraduates and asked them to pretend they were going to be given sums of money in either monthly or annual increments. Two-thirds of the group were women, all were young, some had business experience, others didn’t. Not exactly a cross section of America, much less of humanity—but so what? This is science. So the kids filled out a questionnaire. And what do you know? The ones who had been told they would be paid annually said they thought they wouldn’t spend the money as readily as the kids who were told they’d get their money monthly.
And so a tax cut created by the government of the almighty United States of America was “framed.” Taxpayers saw small increases in every paycheck, just as the data had dictated. And then … nothing happened. The economy remained stuck. Per capita spending didn’t increase. The incremental framing was no more successful than the lump-sum “bonus” had been. What went wrong? Well, the behavioralists had failed to consider other truths that the data didn’t show—commonsense truths, human truths that lay beyond the grasp of their questionnaires. For example, 200 million taxpayers in the grip of a recession react differently from college kids doing a thought experiment in a classroom at Texas A&M. Perhaps in hard times, citizens are more likely to save an increase in their resources than spend it, no matter how the matter is “framed.” Or maybe this whole “framing” thing is simple-minded.
Every now and then, as the New Science continues to roll through every area of American life, from baseball to fashion design, we see signs of intellectual prudence resurfacing, evidence here and there of a restraining modesty—the caution and second thoughts that true prudence requires of thinking people. Critics of evolutionary psychology are publicly making the case that our knowledge of prehistoric life is inevitably too sketchy to use as a basis for psychological speculation about contemporary life. A small but noisy number of social psychologists have begun to point out the shoddy experimental practices common to their field: small sample sizes, a failure to replicate findings, a misuse of statistical protocols. People are increasingly aware that some of its most cherished findings—which have subsequently been built into countless other studies as operating assumptions—cannot be confirmed. These admirable science cops have even deployed humor and parody to make their point. One impish researcher, for instance, undertook to prove that time travel is real, and succeeded. His experiment demonstrated, through the application of an accepted but impenetrable methodology, that listening to a certain Beatles song could reduce an undergraduate’s age by one year. Now we have to change the song’s title to “When I’m Sixty-Three.”
Yet the heedless march continues. I said awhile back that there were two considerations (you forgot already?) that made it hard to dismiss the imprudence of the New Science as merely comical. The first is the practical influence it has over intellectually unarmed laymen like management consultants, television producers, science reporters, marketing professors, and the writers and readers of pop science books. The second consideration cuts deeper.
We live in a post-Christian age. Or so we’re told. The meta-physical assumptions that once served human beings in understanding themselves and their relationship to the world are no longer accepted, certainly not by our most educated and admired thinkers. So now is as good a time as any to quote G. K Chesterton’s great aphorism: When a man ceases to believe in God, the danger isn’t that he will believe in nothing, but that he will believe in anything. Into the vacuum left by the traditional view of a man—a unique being created by God, endowed with a soul, infinitely precious—comes the thin and desiccated conception that is both the premise and conclusion of the New Science: A human being is a member of a not-so-special species, tugged and pulled by unconscious impulses, the random consequence of a blind and pointless process stretching back to the beginning of time.
No one actually believes this, of course; a person who truly lived by the New Science metaphysics of humans as soulless robots wouldn’t be a skeptic, he’d be a psychotic, unconstrained by the most elemental assumptions that make us civilized. Virtues can be cultivated, said the ancients, but they are also innate. Maybe they’re an evolutionary adaptation.
It turns out that prudence is harder to shake than we might have thought. In our daily lives, as we struggle to get along with each other, some form of prudence retains its hold over us; it is there to tame the wild thought, stay the impulsive hand. It is a mystery beyond the reach of science, old or new. Lucky for us, we still live in a world where prudence, as often as not, remains enthroned as the queen of the virtues.
CHAPTER 3
Justice
The One Virtue Nobody Really Wants
Rob Long
TWO WEEKENDS AGO, on a Saturday afternoon, I made a tragic and irreversible mistake.
I went to Costco.
Which is not, of course, a mistake in general. Big warehouse stores are great places to find roast chickens, gallon drums of mayonnaise, and batteries sold by the crate. At my local Costco, I can guide a small, boat-sized trolley through the aisles and fill up on enough garbage bags, pinto beans, and multivitamins to last the calendar year. I love Costco so much, I often find myself yearning for the (inevitable, for Los Angeles) 7.0 earthquake—the Big One—just so I can finally make a dent in my enormous stockpiles of Ramen noodles and baby wipes.
The problem is, on a Saturday afternoon, everyone else is doing the same thing. The spaciousness of the store and its radiating vibe of plenty are ruined by all of the other people banging into you with their giant carts, or crowding around the pallet of vacuum-sealed ribs, or creating long, snakelike lines at the register.
On this particular Saturday, somehow, it was worse. The place was so packed, I couldn’t even make it to the aisle where they keep the drums of ketchup.
What did I do to deserve this? I asked myself, as I threaded through the masses. I guess in a previous life I must have burned down an orphanage. That’s one way of looking at the idea of justice: It’s payback for your sins. In a previous incarnation, I suppose, I was one of those evil warlords who marauded through the Steppes. No, being a warlord is hard work, even for a previous-life version of me. Maybe I was a Dickensian villain who hated orphans (“Those big eyes! Those smudgy faces! Are there no workhouses?”) and I did something truly evil—I burned down the orphanage, orphans and all!—and now the universe was getting its revenge by making me wait thirty minutes to check out of Costco.
Payback received.
Justice, in this view, would be more like the ancient Vedic idea of karma—that balancing force of nature that connects everyone to everything (and vice versa) and punishes wrongdoing in ripples that radiate through many lifetimes. It’s an irritating philosophy, obviously, because I’m almost entirely certain that any previous lives I may have had—and, for the record, I didn’t have any—weren’t spent marauding, but rather cowering in a hut somewhere wet and cold or, at the very most, kneeling submissively before some psychopathic ruler while blubbering out ridiculous and desperate flattery. I mean, that’s basically what I do in this lifetime. (I work in Hollywood.)
In other words, what did I do to deserve this throng at the local Costco? And the short answer is: nothing. So if the Costco debacle was karma, then it was unfair. Unjust. All I did, really, was sleep a little too late on a Saturday morning to beat the crowds.
When seen that way, as a series of tiny, needling pinpricks—sleeping an extra hour gets you punished with a crowded warehouse store—then the exotic, incense-heavy notion of karma starts to look a little less spooky and grand. It’s not capital-J Justice. It’s karmic justice. It’s justice lite. And the punishment of karmic justice isn’t meted out over the decades and lifetimes. It happens in the here and now, probably within some sort of twenty-four-hour statute of limitations. When you get right down to it, karma isn’t such a big and complicated idea at all, which is probably why they talk about it so much in yoga class.
That’s why we say we’re “bringing” someone or something “to justice.” And you never, ever, say, “We’re bringing that guy to karma.”
In the Asian subcontinent, where karma was invented (or discovered, depending on how you view these things), the climate is often so inhospitable that it’s no wonder people developed a vaguely mañana attitude about these kinds of things. It’s stifling hot or raining monsoons, and there are stinging insects all over the place. You can practically hear them saying, ages ago, during the era of the Upanishads, “Let’s just let karma get that guy, okay?” Someone’s using a banana-leaf fan and they’re sitting in the hot shade and he’s all, “I am not bringing anyone to anything in this weather.”
Move a little to the west, and the culture develops a more hurry-up kind of urgency. Colder weather, perhaps, clarifies the mind. And so karma gets a little goose and the idea of “justice” takes hold. Justice is karma on a timetable. Justice is what karma becomes when a bunch of Type-A dudes get hold of it.
The problem is, justice is complicated, with lots of moving parts and a terrifying margin of error. Justice is something people do to other people, and if there’s one thing we’ve learned from history, it’s that most things people do to other people aren’t very nice. Even when—maybe especially when—they’re driven by good intentions.
“Your Honor, I have a problem,” the prospective juror said to the judge during jury selection a year or so ago. The prospective juror—just so you don’t get the wrong idea—was not me.
I’m a good citizen and a patriot, and I believe in the process—messy and flawed—of justice. So when I get a summons to appear for jury service in Los Angeles County, I obey it. (I postpone it several times, of course, and then whine about it constantly, but I do eventually show up.) I have a wide and expressive face, one that radiates a kind of sunny fairness—you’re just going to have to take my word for that—and so I almost always make it to the jury box for the voir dire process. I usually last until I announce my occupation—I work as a television writer and producer in the entertainment industry—at which point the defense attorney thinks to himself, This guy is a pampered plutocrat who hates minorities and the underclass, and the prosecutor thinks, This guy is a guilty white liberal who thinks all defendants are innocent. And I end up excused for another two years. (Ironically, both lawyers are essentially correct.)
Last year, though, I made it through a couple of rounds. The prospective juror to my left—female, thirtysomething, expensive watch, Kate Spade tote—squirmed nervously as it became clear that the jury selection process was winding to a close and that she was going to be on the panel. So she raised her hand in a desperate gambit to get out.
“Your Honor, I have a problem.”
Her problem, she told the judge, was that the defendant in the trial—it was an assault case, and a pretty serious one—had come to court in his prison jumpsuit. He was surrounded by people in suits and court uniforms and here he was, the unfortunate, in a costume that screamed “Guilty!”
“How can I be impartial when I keep seeing him in that outfit, like he’s already guilty?” she asked.
The judge explained, carefully, that each defendant in the hot and dusty county of Los Angeles has the right to appear in court wearing pretty much whatever. The defendant could have worn a suit. He could have worn a scuba outfit. He chose, probably on the advice of counsel, to wear his orange prison overalls.
“But why would he do that?” she asked.
“Well,” the judge said carefully, “that’s what we’re going to find out during the trial, right? What his story is.”
She shook her head. “I just can’t see him impartially,” she said. “Not in that outfit.”
The judge looked annoyed. “Justice, ma’am,” he said, pointing to the Great Seal of the Los Angeles County Courts, with a depiction of Lady Justice, the Greek goddess Themis, who holds up the scales with her eyes blindfolded, “is blind.”
“Yeah,” she said. “But I’m not.”
And with that, she was excused from jury service. “Nice one,” I whispered to her as she shuffled past me. She shot me a dirty look.
Justice may be blind, but we aren’t. We are very much sighted. We see the assault-and-battery defendant in the orange jumpsuit. We see the insider trading defendant in the $530 Brioni T-shirt. We notice when class and status get dragged in irons to the dock, and it’s hard not to think, Okay, maybe he’s innocent of that specific charge, but the guy is clearly a bastard. He’s guilty. Of something, anyway. We may have a goddess as a symbol, but justice is a human sport.
Interestingly, the supernatural world doesn’t need a system of justice. Vampires, for all of their seductive power, can’t really bend the rules: The sun comes up and they die. Shoot a werewolf with a silver bullet and that’s that. No litigation necessary, or even possible. It’s only humans, with their endless capacity to whine and beg and wheedle and wiggle out of commitments, who need an institutional mechanism for justice and law enforcement. Everyone and everything else just sucks it up.
During the economic meltdown of 2007–2009, when the financial bubble inflated by mortgage-backed securities collapsed in a pile of bank failings and taxpayer-supported bailouts, some financial masterminds suggested a unique way to reform the financial oversight bureaucracy: Abolish most of the financial institution regulatory mechanisms and replace them with a simple agreement.
Take the top 5 percent of the employees of any bank or financial institution that does business in the United States and make them pledge 99.9 percent of their net worth toward any future settlement or bailout that the federal government (i.e., the American taxpayer) is obliged to cough up in case of their failure.
The bailout would naturally exceed the amounts collected, of course, but it would be fun to see high-flying investment bank vice presidents tooling around town in Hyundais and Kias rather than BMWs and Bentleys. It would be immensely satisfying to watch the 1 percent trade summers on Nantucket for summers around the backyard above-ground pool, in a neighborhood without a Whole Foods or really good sushi.
Would it compensate the taxpayers? Oh no. Not by a long shot. But boy, would it hurt the investment bankers. And maybe that’s enough.
The idea behind the proposal, though, was that the automatic karmic punishment would be so unthinkably painful—“Tristan? Sophie? I have some bad news. Tristan, you’re not going back to Andover next year, you’re going to George Washington Carver High. Sophie, you can’t take that unpaid internship, you’re going to work at Quiznos with baggies on your hands”—that it would create its own kind of powerful regulatory oversight. Don’t want to slip down the class ladder? Then maybe you’d better run the numbers again on that risk-blind derivative of a Class-B tranche of mortgage-backed securities you’ve just option-swapped.
We’re supposed to be talking about justice, of course. Yet why is it that we always seem to end up talking about punishment?
For the record, the defendant in the orange jumpsuit was clearly guilty. He didn’t really contest the issue in the ensuing trial, which I couldn’t evade. What he wanted, it seemed, was to be seen as someone who had already served some time in prison—hence the strategic choice of wardrobe—in order to appeal for leniency. Which he didn’t get. When we talked about it in the jury room—and here, I hope, I’m not breaking the law—there was lots of talk about “time served,” but also lots of talk about “sending a message” and “getting tough” and “making sure the punishment fits the crime.”
It turns out that a randomly assembled group of Los Angeles County voters—minus the subset of thirtysomething females with Kate Spade totes—can’t exactly be Blind Justice Holding the Scales, but they can, in a disorganized and rambling way, get to the point and come up with a rea
sonable, though imperfect, way of dealing with a defendant in an orange jumpsuit who beat up his girlfriend.
I held that last detail back, did you notice? And did you also notice that the minute you read that final clause—“beat up his girlfriend”—the whole story seemed different? Justice may be blind, but we’re not.
When you know what he did, you want to throw the book at him. For something, anyway. When you know how he assaulted his girlfriend—and, as jurors, we knew; we saw the emergency-room photographs, which were catch-your-breath shocking—you’re not going to let him walk. You’re going to bring him to justice, even if he’d already served some time, even if he was “deeply committed to anger-management counseling,” according to his lawyer. Even if he had already lost his job and (in a detail that was never explained to us) his car as well.
What we talked about in the jury room, then, wasn’t really justice. It wasn’t guilt or innocence. In most trials, that’s already pretty much decided. No, what we balanced, not so blindly, was punishment. We didn’t discuss the fairness of the process or social inequality or the state of the public schools or cultural differences. We talked punishment, as in, if we find him guilty of this or that charge, in this or that degree, what’s the guy going to get? To the extent that a jury has an ability to influence or shape the punishment, that’s what we focused on.
Not justice, really, but whether this guy would get punished harshly enough to deter him from doing this again, but not so harshly that he never gets out from under the cloud of the conviction. The scales of justice, which are supposed to balance the evidence of guilt or innocence, really end up balancing something more personal and human: revenge and mercy.
Well, maybe “revenge” isn’t quite right. (Though it’s not quite wrong, either.) When business pundits and L.A. jurors sit around trying to sort things out, it’s hard for them to totally ignore the devil on their shoulders urging them to make this guy pay. Justice is something people do to other people, often with a vengeance. It’s measured not in time served or fines paid but in the sting of the punishment, the pain of the sentence. Justice—to be truly satisfying—has to hurt.
The Seven Deadly Virtues Page 4