Cases like Natasha O’Brien’s prompt a sudden, disquieting voice in collective consciousness

Regular readers of Joe Humphreys’s excellent Unthinkable column might be disappointed not to find him cogitating away here as usual. I’ll be keeping the page warm for a few weeks while Joe is away, and continuing the conversation. After all, there’s a reason philosophy is so important and why philosophers are rarely a hit at parties. Philosophy requires us to say the hard thing – that the right choice is not always obvious. It is ultimately fuelled by doubt, which is a necessary condition of wisdom.

As that philosopher in the creased shirt at Dave’s birthday party will tell you, there are no settled questions. If we possess certainty – if we’re absolutely sure that we’re right – then we’re not open, and without openness, we can neither learn nor be sure that we know what we claim to know. Asking good faith questions, knowing that the answer is not immediately obvious, is not just important for staying sane in an overconfident world. It’s foundational to any just society.

Doubt is at the root of the dismay and public outrage since Cathal Crotty, a serving soldier, walked out of a Limerick court having received a three-year suspended sentence. He beat a young woman named Natasha O’Brien unconscious in an attack on a Limerick street in 2022. The sentence came at a time of particular sensitivity around gender-based violence. Two days prior, Women’s Aid Ireland reported its highest ever recorded rate of violence against women. Speaking outside the court, O’Brien said “it’s not justice”.

In the case of the awful crime perpetrated against O’Brien, whose fortitude throughout has been exemplary, many people, and particularly women, would like to see justice. Yet justice itself is elusive – we know when it is absent, often because that absence resonates with us emotionally. However, pinning down precisely what justice requires is less clear.

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Most political philosophy since John Rawls’ 1971 A Theory of Justice has explored the concept of justice. He focused on ideal theory so that he could determine the principles and structures that would govern a truly just society. Rawls was keenly aware that he didn’t live in a just society any more than we do, and argued that to create the conditions for justice, we must first determine principles that shape an ideal society in the absence of knowing anything about what our own place or status might be within it. He called this placing ourselves behind a “veil of ignorance”. It aims to maximise fairness and independence from bias.

For those who desire an Irish legal system that is more responsive to gender-based violence, it’s not immediately obvious that being behind Rawls’ veil of ignorance would be particularly helpful. This is where doubt comes in.

In an ideal world, what is it that we should advocate for to address the disconnect between gender-based violence and our sense of justice under the law? Perhaps justice should ideally be meted out from behind the veil, as Rawls suggests. Or maybe we should lift it altogether because people are nuanced, and context matters.

Should we advocate to treat acts of violence against women by men more harshly? If so, does it follow that violence by women against men is less reprehensible? If we imagine society to be systemically patriarchal and misogynistic, does it follow that in both prior questions men are to be blamed? Though, if this is the case, do we risk seriously diminishing the agency of women and allotting disproportionate power to men? And, of course, for those who believe the whole rotten justice system is a patriarchal one, it makes no sense to adapt or amend it. It would be like putting a cool new spoiler on a burnt-out Honda Civic. A totally broken system would need to be replaced and this creates new problems. New doubts.

We generally presume that the rule of law is inviolable – that it establishes not just legal truths but moral ones. Cases like O’Brien’s prompt a sudden, disquieting voice in collective consciousness. The voice of doubt. Ireland has reacted with discomfort to the misplaced certainty embedded within a system which determined that justice meant Crotty leaving the court with a suspended sentence, and which produced a judge who elected to interpret the law such that it might protect Crotty’s career.

This certainty engenders rigidity in our political and legal systems which makes them resistant to change. Philosophical doubt is valuable. With it, we create space to imagine systems that reflect our values and to consider with fresh eyes what justice means.