The most recent issue in DC Comics’ Batgirl title (number 18, issued 21/12/2017) taught an unlikely lesson in political philosophy; possibly one that the author did not intend.
To give a brief plot summary (omitting all picaresque detail that might be of interest in its own right, but does not bear directly on my current concern), Batgirl, a.k.a. Barbara Gordon, is at a party hosted by a rising CEO, who is painted as being somewhat to the far right of the political spectrum. He is described as ‘depriving people of their human rights’, and a supporter of homophobic hate groups. He is portrayed as saying that law is whatever he pays it to be, and that rules apply only to the little people. In other words, he is an affront to any conventional concept of justice.
The villain Harley Quinn appears to share this evaluation: she drops in uninvited and deploys a cocktail of inventively exuberant poisons that will leave everyone at the party dead within twenty-four hours, that is, unless the CEO passes a test that she has set, in which case she will deploy the antidote. Batgirl immediately sees an opportunity to stand up for the cause of justice by attempting to save the nice man, all the while castigating Quinn for her deep evil in trying to kill him.
After a certain amount of palaver, it turns out that Quinn’s intention was simply to get the CEO (and Batgirl) out of the way for long enough for his employees to get together and decide to quit en masse. She deploys the antidote and vanishes. Batgirl is triumphant. The end.
Was justice served?
It has to be said that this is a pretty odd story. Batgirl / Barbara Gordon is generally portrayed as a nice, privileged, white liberal (she has a gay friend; what more proof do you need?). So why, exactly, is she standing up for everything that is the worst in the United States of America? Should she not be cheering Quinn on?
Well, here we get to the hoary, albeit correct, assertion that when it comes to justice, what matters is not what you want to be just, but what is just. To put it another way, justice is blind, and so everyone should have the same rights as everyone else, regardless of whether or not you like them. According to this line of argument, Batgirl does act correctly, because, though Quinn is undoubtedly right in determining that the CEO is a menace to society, even menaces to society have rights, and resistance to his noxious behaviour should have been expressed through legal channels.
So, on the surface, Batgirl is in the right.
However, there is a rider to this. Justice is blind. More precisely, using the characterisation of justice that F. A. Hayek made in his masterwork The Road to Serfdom, it is not enough for justice to be based on law, or to follow established processes: it must be deterministic. That is to say, the outcome of any judicial process must be independent of the identities of those involved. Putting it another way, whether what you have done counts as a crime depends entirely and absolutely on what you did, and not on who you, or any of those involved, are (this is not to deny the possibility for mercy: justice determines whether a crime occurred; this determination completed, the decision as to how best to respond is where mercy plays its part).
A system of ‘justice’ that is not deterministic is, therefore, not truly just. It is merely tyranny in judicial clothes.
What this means
So, Batgirl may well have served ‘justice’, but was what she did just? In Leviathan the great philosopher Thomas Hobbes makes the observation that law and justice are not natural: there is no a priori reason why killing people you don’t like, or grinding the face of the poor in the mud should be wrong. However, once people have decided that they do not wish to live (to use Hobbes’ terminology) in the state of war, it follows that they have a number of rights, e.g. life, property. Hobbes’ great insight (expanded by Isaiah Berlin in his essay Two Concepts of Liberty) was to observe that these positive rights (the right to something) go hand in hand with negative rights (the right to not be deprived of positive rights) and that negative rights equate to anti-rights, or responsibilities.
As an example. Suppose I have been granted the positive right to property. That means that I have the negative right to not be deprived of my property. But now, as justice is blind, if I have that right, so does everyone else. So, because I want my right to property preserved, therefore I have to respect the right to property of others, which means that I must accept the curtailment of my right to take what I want from other people.
This is a huge insight. It means that, as Hobbes argued, a truly liberal respect for the rights of others is, eventually, and essentially, driven by supreme selfishness. I must respect the rights of others, for otherwise they need not respect mine.
What else it means
So rights and responsibilities go together reciprocally. How does this help us understand Batgirl’s apparently obtuse behaviour?
Naturally complex juridical systems do not arise in and of themselves. Hobbes posits that the system of justice arises as a part of what he calls a King-making compact, whereby the sovereign people (Leviathan) appoint authority to enact and regulate the process of justice, thus guaranteeing that they can live in a state of order, and not the state of war.
He then goes on to observe that, if the authority violates the King-making compact (e.g. by failing to ensure that justice continues to operate correctly), then the sovereign people are at liberty to overturn it, for it has lost its legitimacy. This was, of course, somewhat topical when Hobbes was writing, during and after the English Civil Wars, but it is no less relevant today. In particular, it is relevant to the United States of America, both in the reality of Batgirl’s Gotham, and the crude fantasy of Trumpopolis.
What of the USA?
It is fairly clear that justice, in the USA, has failed. There is little or no pretence that it is deterministic. A crime (possession of cannabis) that can get a white youth told not to be naughty and sent home without a stain on his character, can send a black youth to prison, leaving him branded as a convicted felon, forbidden from voting and unable to get meaningful employment, for the rest of his life. The President of the United States openly flouts anti-corruption laws and nobody seems to care. Police can literally get away with murder, if they say they feared for their life (and the victim was black). Airline cabin-crew can beat up passengers because they look foreign. Judges make rulings based not on law but on, or so it seems, whatever they happen to feel like today (e.g. banning a program of methadone replacement because it was ‘a crutch’ for addicts). State governors can send men to be executed for crimes they did not commit, when the courts had already overturned their sentence and the actual perpetrator found, tried and imprisoned.
This is not justice. This is a travesty. It may be tyranny in the clothes of justice, but it is tyranny nonetheless.
Where does that leave Batgirl?
To return to Batgirl, in her world, there is no justice, and she knows it: the depiction of the CEO makes it very clear that he is one of those who have total impunity under law, regardless of what the law may say. But Batgirl defends the law, come what may, and insists that she is right, and Quinn is wrong.
Unfortunately for her, the King-making compact has failed, the state is illegitimate, and Quinn is absolutely in the right to do what it should do: punish the guilty and defend their victims. She is the beginnings of a new King-making compact.
Batgirl is a quisling.