The Ideal of Punishment

The big divide which for a long time has been canonized between legal systems is one that is primarily related to their degree of rationality. Either systems are formally rational, or else they are irrational, and with subtle sub-categories in each. Systems that are rational tend to have logically constructed systematic codes whose ratio legis is grounded solely in the dynamics of law itself. Interference from other spheres of the life-world, such as the religious, political, and supernatural, tend to be minimal, if not absent. Moreover, the history of those systems tends to favor their congruence with modern laissez-faire capitalism, which, in turn, assumes an ideology of individual freedom and personal achievements. The special privileges between law and economics are therefore taken for granted as beneficial to the enterprise of law itself, which in turn should not stand in the way of the achievements and benefits that laissez-faire liberalism has thus far accomplished. However, such a congruence between two spheres --the legal and economic-- is generally not overtly acknowledged for other domains, so that political pressures on the judicial decision-making process are usually perceived in negative terms, as if betraying the spirit of the law altogether. Moreover, remnants of the past, such as the jury system and the privileged status of the Constitution in American common law, are either portrayed by their supporters as positive vestiges of the past which help build the coherence of the system and its acceptance by the community, or else they represent for their pundits its most irrational aspects, all of which need to be put behind. In that category of formally rational systems stand Anglo-American common law and all the systems of western Europe, which despite major differences in legal reasoning --in particular when it comes to the peculiarities of civil law in minimizing the role of judges and the coherence of the codes-- fit nicely together as far as rationality goes.

At the other end, are all kinds of systems that are not perceived as rational, such as the Islamicate, the Indian, Chinese, and the Asiatic in general. Those are typically construed in terms of difficulties inherent in constructing a rational system of adjudication and decision making, one that does not rely upon sacerdotal modes of reasoning whenever it comes to making decisions, legislating, legal reasoning, and adjudication. Yet, despite some recent research on the irrationality of the rational in contemporary American criminal procedures, the distinction outlined above still holds as far as comparative law goes.

However, when it comes to crimes and homicides, the lines are blurred due to constant complains in North America and Europe on what is perceived either as a politicization or socialization of crime, or at best a lack of professional criteria that would establish the "right" punishment. Thus, for example, the death penalty in the United States, and the high number of inmates, not to mention the criminilization of drug felonies and the failure of the rehabilitation system, have all led to question the meaning of "rationality" in criminal procedures. Some have criticized a combined process of politicization and socialization of the system, at the expense of its juridification (Feeley, 1979, 1992; Feeley & Rubin, 1999; Stith & Cabranes, 1998). Moreover, many legal scholars in North America have questioned the overall objectivity that the system claims it is founded upon, hence leading to a reassessment in terms of dominant political ideologies (Kennedy, 1997).

The problem becomes even more pronounced once we move into systems, such as the contemporary Arab and Islamic, which for the most part have fallen behind in terms of fully rational procedures. To be sure, in such systems even civil procedures are at stake, considering that the economies under which they operate are still heavily under state control, thus undermining their efficiency. Such heavily bureaucratic societies, where the state acts as a big machine that controls production and the circulation of commodities, the freedom of contract and property, on the one hand, and the autonomy of the judiciary, on the other, would find themselves in a gray area from which it would be difficult to freely evolve, thus undermining even further the credibility of the judiciary altogether, which is often perceived as an apparatus that favors the dominant strata of the population and those connected to the apparatus of the state. Such a politicization of the judiciary, however, should not be necessarily looked upon within the same light as the critiques to which the North American and European systems have been subject to recently. In fact, it is one thing to decry the irrationality of a system with a long tradition of laissez-faire capitalism, and another where all aspects of societal relations are under the agency of the state and still operating under the burden of centuries of pre-capitalist relations and religiously oriented laws and normative rules.