June 29, 2017
Death of a murderer: real justice, symbolic justice, and the State
The decision of the Court of Cassation on the compatibility of Toto Riina’s health with his own imprisonment has raised a heated debate. Gianfranco Pellegrino presents some reflections on the meaning of justice in an unjust world
Do we have a right to die with dignity, as well as we have a right to live with dignity? Is dying in jail a just punishment, when it is imposed on the head – someone universally regarded as such and with no visible sign of regretting his misdeeds – of a criminal organization such as the magia? Should a democratic state respond to its enemies by paying them back with the same currency? Or is it held to further duties, beyond mere retribution or retaliation? It is not easy to settle this kind of issues – and Totò Riina’s actual health conditions have little to do with it all (whereas his ability to conduct criminal activities do matter, of course). If dying in jail is not dignified and is not worthy of a human being, then whether the death is natural or by illness does not matter. The issue here is the ethical adequacy of life imprisonment. The issue, nevertheless, is also about symbols. If Riina were to be buried as a free man, possibly in its own Corleone, his funeral would surely take on a strong symbolic value that mafia dons would surely want to exploit to declare their power over the State. Then is it part of justice’s duties also fighting this perverse use of symbols? Is it something that a democratic regime should engage with?
Imagine an ideal world – not necessarily a Promised Land with rivers of milk and honey and plenty of fruits hanging from the trees; not necessarily a world with no heaven or hell but, rather, a heaven on earth, with no borders and no reason whatsoever for committing murders, and no wars. It is enough to imagine a world with enough resources so that anyone could make a decent living, a world where human beings will and can comply with the basic moral laws of reciprocation and benevolence.
In such a world justice would be pointless – at least if understood as a remedy against the common wrongs in a world where human beings, or most of them, do not comply with basic moral laws. Justice is needed in a non-ideal world – a world where injustice is a real possibility. Justice is a remedy for injustice. And while there is only one ideal world, there is an over-abundance of non-ideal worlds – from the world of modest wrongs in the most advanced of Western countries to the world of dire injustices of the South of the planet, right to the bottom of several levels of injustice and disgrace.
Laws are the tool of justice, and exactly like justice itself they are needed to remedy the wrongs of a non-ideal world. As a consequence, their content depends on the levels of injustices in the world where they are implemented. We can make exceptions to the rule of equality before the law – we can have special rules, such as those we use against national and international terrorists. In a few, special cases, even very important rules can be violated. Violence can be judged differently, whether it is against an unjust regime or if it is perpetrated against the innocent in a democratic system, and it is different if it comes from a private individual or a public official – for instance, it could be considered torture on an innocent citizen by a public official. Violence consisting in detaining individuals within prisons could be justified, under the rule of law, but it is not so by default.
Each and every special legal provision is a response to an emergency. It is difficult to ascertain whether a given rule is the right answer to a given level of emergency, or to a given non-ideal world. However, a moral principle of proportionality should hold: the more distant the actual world from an ideal world, the more specific legal rules may be justified, even when they violate benevolence and humanity. Whenever that distance decreases, even in a tiny amount, we should be ready to come back to those same humanity and benevolence, renouncing special rigours.
Riina’s continued criminal role is the only ground on which we can justify his special restrictions and life imprisonment – and special restrictions are one thing, while a life sentence is a whole other issue. The very idea of living in prison with dignity is a contradiction: stripping people of their freedom cannot be considered a humane treatment. It is justified only in the name of superior values, if any, such as collective security. Imprisonment is always a radical step, a matter of emergency, a device to be used with extreme caution, and rarely too. And this holds for everyone, even for a very dangerous criminal, such as Totò Riina. Bernardo Provenzano died in jail, while in a vegetative condition. Was his death useful to the fight against mafia? Possibly, as far as symbols go. But should a democratic regime indulge in the same symbols of its anti-democratic enemies?