Justice is predicated on guilt/innocence of the accused beyond reasonable doubt. It is steeped in the view of personal autonomy and individual responsibility. Justice is grounded in the paradigm that the sleuths of justice may solve the puzzle underpinning the crime and assign responsibility.
What to do with mysteries – criminal situations where it is inherently impossible to establish criminal cause-effect relationships? Though justice “knows” – yet somehow this knowledge does not empower it to mete out justice.
This is the case where a “mentality” underpins the specific criminal activities. We may be able to identify the finger that pulled the trigger but not the mind that inspired it. For the crime is “in the air”; it results not from an order but a shared and silent intentionality where everyone plays his well-assigned role, even when everyone is improvising.
I’ve come across this situation with regard to major criminal events that have shaken Italy to the core and transformed the country. It is plausible to argue that the country’s last twenty years are steeped in such criminal events.
For reasons beyond the scope of this blog-entry the Italian State (irrespective of the regime) has had a long history of “containment” of the mafia – criminal organizations in areas of the South, which ran in many ways parallel structures to that of the State. This policy of containment was reaffirmed during the Allied invasion of Italy and underpinned Italy’s anti-communist stance. The mafia delivered the votes, and obtained immunity from prosecution in return.
This containment policy became frayed as the communist danger receded. Mafia bosses were put on trial and – for the first time – found guilty. At this point a convergence of interests and intent appears to have emerged among Mafia clans, “deviated” Masonic lodges, secret service fringe clusters, ultra-conservative religiously tinged groups and others to reaffirm the “containment” compact between State and mafia. This would be achieved by liquidating the “old” political caste and replacing it by a new one, which would secure the subordination of the legislative, the executive, and the judicial arm of the state under a non-ideological and populist leadership.
These groups acted in parallel, intersecting at times, breaking apart again. There seems to be little evidence of explicit collusion, though there may have been go-between. Yet they shared an unspoken matrix: “In seeking to explain individual, corporate and societal accomplishments there is no need to invoke deliberate intention, conscious choice and purposeful intervention. Collective success need not be attributable to the pre-existence to a deliberate planned strategy.” At the end of this fluid process, however, Forza Italia and Berlusconi emerged as the “new” force – which proved beneficial to all these parties.
Between the view of conspiracies leading the world by its unsuspecting nose (behind the veil of obfuscation an elite is at work), and the naïve view of history as a series of disjoined events there lies the world of “silent collective intentionalities” where such intentionalities are grounded in habits rather than deliberation. This comes down to a “mentality” and a (possibly tactical) conjunction of material interests as well as partisan worldviews. DAWKINS would speak of “memes” – evil memes in this instance – acting to replicate themselves irrespective of individual wills.
Justice, I’d argue, today can deal rather effectively with an individual’s deliberate crime. Forensic analysis has made enormous strides (gone are the days where the only things the cops had up their sleeve were fingerprints): pity the lone artisanal criminal. Justice – if given prosecuting omnipotence – is also in a position to deal with organized conspiracies.
We know more nowadays. We know that often criminality is not so much the sum of individual acts or the work of an organization as the result of “mentalities” and indirect action. The law may get the individual actor, but as long as the mentality remains, criminality will recur. In fact, the most heinous collective crimes – from white-collar crime to political offenses – most likely are the result of such intangible “mentalities”. How do we break up noxious mentalities (provided we can agree on what “noxious” is)?
Justice seems to remain inherently impotent against such unspoken and un-coordinated “collective intentionalities” – where we no longer deal with covert collusion. Even less it is able to grasp cases of “unintended consequences”. The author of the book on Italy – a former prosecutor – explains it in sadness: he “knows”, but he will never be able to prove anything. Criminalizing “fellow traveller” did not stand up in court – particularly if the accused was a powerful person. The only evidence left is a bunch of coincidences, sequences, and oddities. How to grasp an “evil meme”?
The current haphazard trend seems to be “profiling” – mostly through data mining. Trawling nets are crude instruments that catch a lot of unwanted fish. “Virtual” nets leave the sorting to machines in accordance to secret (and mostly untestable) algorithms.
I don’t have a solution to these issues. One hundred years ago “mentality” was little more than sociological anecdote – and plausible speculation. We know more nowadays. Better ways of dealing with the issues do not automatically (or necessarily) come with the heightened understanding, however. On the contrary – the major result may be to highlight our own fallibility, tendency to delusion, and in the end powerlessness. I’m tempted to mutter under my breath: “Who ever said that ‘truth shall set you free’”?
 Ian MILLER (2006): An eye for an eye. Cambridge University Press, Cambridge.
 Antonio INGROIA – Giuseppe LO BIANCO – Sandro RIZZA (2012): Io so. Chiarelettere, Milano. Antonio INGROIA, as public attorney in Sicily, was in charge of establishing links between mafia, the “old” and the “new” political system. These links were responsbible i.a. for the murder of judges like Falcone and Borsellino in 1991-1992. The case never came to trial for “lack of evidence”.
 See e.g. Norman LEWIS (1991): The honoured society. Eland, London.
 Robert C. H. CHIA – Robin HOLT (2009): Strategy without design. The silent efficacy of indirect action. Cambridge University Press, Cambridge.
 Richard DAWKINS (2006): The selfish gene. (30th anniversary edition) Oxford University Press, Oxford.
 Lest this be quickly judged as self-evident, let me recall the “fellow-traveller” scare after WWII. “Guilt by association” can be a very blunt tool. See e.g.: Jackson LEARS (2012): Oh God, what have we done? London Review of Books, XXXIV, N° 24, 2oth December; on the fate of Robert Oppenheimer.
 Beyond the “delusion of connecting the winning dots” comes the fact that contrary to say climate models (for which we have objective time-series of data) we have no factual data-base against which recursively to test the model.