Jusletter IT

It is very easy to write down the wordsjustice andfairness . It is not so easy to write about what is meant by these terms and furthermore about possible attempts to increase the degree of justice and fairness within society. For this we have to deal with the high complexity of (social) reality and we do so by reducing this complexity to certain aspects. Our decisions and actions are then based only on these remaining aspects. This elementary process is not only the beginning of scientific papers, but also the beginning of decision making in modern legal systems. Human perception, interpretation and action in general result out of this process. We are so used to this process, that we seldom become aware of that it actually is a process. Normally we do not realize that our perception and interpretation is already based on a decision and that it never absolutely fits with the complexity of (social) reality. The decision we make, long before we make the decisions we recognize as decisions, is the choosing of a decision factor. Decision factors tell us to what aspects we should draw our attention and so they fundamentally influence our perception and interpretation. So, if we see no reasons for doubting our interpretation and see no reasons for doubting our perception, we may consider our decision asbeyond reasonable doubt . But, do we ask ourselves if we truly see no reasons for doubting our decision factor?

No interpretation will ever exactly fit with the complexity of (social) reality, it will only exactly fit with the antecedent conditions of a certain decision factor (and even this is doubtable). Maybe there is not always a need for doubting certain decision factors. But if the decisions emerging from a certain decision factor have severe consequences for the lives of human beings, this undoubtedly is reason enough to question them. Finally this leads to the goal attempted by this paper.

This paper will deal with an important decision factor for modern legal systems, especially considering the criminal law. This decision factor is thequestion of guilt . First of all we will take a look on theSolomonic Judgment in the Old Testament and its variation inDer Kaukasische Kreidekreis by Bertolt Brecht to point out important general aspects of the relation between wisdom and justice and the responsibility of the judge (respectively modern legal systems), who has (have) to represent this relation. This leads to the social function of modern legal systems, which are supposed to ensure a peaceful status within society. From this point of view we will take a look at the question of guilt and the impacts it has on other human relations on different social levels. What happens if the question of guilt becomes the decision factor of strategies of conflict resolutions besides the modern legal systems? There it becomes without exception a fertilizer of escalation. This will lead back to the modern legal systems and their responsibility for society, for the generations living right now and for upcoming generations as well. This finally leads to the necessity to choose and represent alternative decision factors. It leads to the necessity to overcome the question of guilt.

Speaking of aSolomonic Judgment normally points out, that a decision shows an unusual high degree of wisdom and justice. The origin of this term is located in the First Book of Kings in the Old Testament (K 3,16–28). In this passage two women claim to be the rightful mother of a child and it is up to King Solomon to restore the peace by solving the conflict. For this he makes the suggestion to take a sword and cut the child into two pieces. In this moment one woman immediately stands back, disclaiming her rightful role for the sake of the child. Through this reaction she is undoubtedly identified as thetrue mother .

In the 20th century Bertolt Brecht (1963) uses this scene as climax for his playDer Kaukasische Kreidekreis . In his version the role of the judge is not represented by a king, but a normal citizen. The suggestion made by the judge is more subtle and has nothing to do with an obvious bloodshed (later on we will see, that there truly can be bloodshed that is not so obvious). The judge lets both women stand aside the child. Each grabs one hand of the child and the judge says only the true mother will succeed in pulling the child to her side. Indeed one woman immediately succeeds in this task. For the judge this result reveals the truth, for the mother that lets the child go, the mother that is not able to risk tearing the child apart, has to be the true mother.

It must be pointed out here, that nevertheless the suggestion of the judge still is a very brutal one, even if it does not suggest the death of the child. The woman that truly loves the child is offered a cruel decision. She has to decide by herself whether to seriously hurt the child, or to let it go forever. If this would have been the end of the story, it is ensured, that this woman will not lead a life that can be considered as peaceful. There should be no need to say, that this is also the case for a loving mother watching her child being cut into pieces. If this would be the final decision, it would rather be a threat to public peace than being able to restore it. And the task of restoring this peace leads us to the role of the judge.

Therole of the judge is one of three core aspects that show the similarity of the two stories and reveal the unusual high degree of wisdom and justice within the decision that made this metaphor so famous that it has become a term of our everyday communication. The other two characteristic aspects are theproof of truthfulness and thedecision factor of the judgment .

What is therole of the judge ? In both stories it is up to him to find a resolution for a conflict and by doing so restoring the public peace. But of course this is not everything about his role. As pointed out before not every decision will become a source of public peace. Other options, especially arbitrary acts, could undoubtedly even endanger the public peace. The important question is, whether the judgment will be acknowledged as just or fair by the public, or not.

To reach that goal the judge follows an unconventionalproof of truthfulness . Normally we would expect the judge to listen carefully to the arguments of the two women and then to draw a decision which woman’s claim can be considered as rightful. But in both cases the judge is not taking the claims of the two parties into account, furthermore he completely ignores there arguments and their demands. The judge is focused on one aspect and this is none other than the future of the child. He is not interested at all in any biological (are there any physical similarities between mother and child?) or financial (who spent more money for the child or has more money to guarantee the physical well-being of the child?) aspects. These questions are never drawn by the judge. All he cares about is the freedom of the child. To uncover which woman will grant the child more freedom if she becomes the future caretaker he makes a suggestion. In both cases within this suggestion lies the most important question. When there will be a moment where the well-being of the child depends on forever letting it go, will you do so? But the judge does not ask the two women this question, he simulates that this moment has now come and they have to make their decision. The question whether the women will let the child go or not cannot be answered by saying the wordyes ; it is answered through their decisions and actions, believing that this moment has truly come.

This finally leads to thedecision factor of the judgment . To make his decision the judge looks at the antecedent conditions that lead the actions of the two women. The judge does not decide between persons, arguments or claims, he decides between decision factors. The woman that will be the better caretaker for the child, thetrue mother , is the one that will focus even then on the well-being and the freedom of the child, when it is up to her to make the important decisions, when there will be no judge to do this for her. Considering this important question, arguments and rightful claims will tell us nothing about the actions that finally will happen within critical situations. For this we have to look at the actions resulting out of such situations. This is very close to what Niklas Luhmann (1995b) calls second order observations, which means, that an observation is observing not what but how another observer is observing. According to this description, theSolomonic Judgment is all about how the two women draw their decisions, well aware that they will have an inevitable impact on the future of the child. As it was said before, it represents a decision between decision factors. So, theSolomonic Judgment can be called asecond order decision .

Only by taking a superficial look, theSolomonic Judgment and its variation withinDer Kaukasische Kreidekreis are based onpersonalization – a term used by Theodor W. Adorno (1995) in the context of theStudies in Prejudice . (We will come back to this later.) A closer and more specific look reveals that it represents asystemic point of view .

From exactly this point of view we will now take a look at the question of guilt as an important decision factor for modern legal systems, especially within the criminal law. We will do so by looking at its impacts on other human relations on different social levels within society. What happens if there are critical situations, there is no judge at hand and the question of guilt becomes the decision factor of strategies for conflict resolutions?

As it was mentioned before the question of guilt is an important decision factor for modern legal systems, especially within the criminal law. To put it in very simple words, if someone receives damage (personal, financial, etc.) as a result of the actions of a different person, the person who has committed these actions is considered asguilty and the judgment by jurisdiction leads to a punishment of this person (also personal – by prison sentences, financial, etc.). Only the degree of personal guilt and the degree of punishment as an official reaction are various, the core principle in any case stays the same.

For the degree of punishment the term ofparticularly serious culpability is of high importance (e.g. in the German Criminal Law it is located in § 46 StGB). Here it is important to what degree a person was aware of the possible consequences resulting out of its own actions in the moment he or she committed them. If we talk of particularly serious culpability, if a person is considered to have been very well aware that its actions would have serious consequences for the well-being of other persons and nevertheless committed these actions, the resulting reaction of the legal system will also show a very high degree of punishment.

So, the focus of the question of guilt and the measures that emerge from it are strongly linked to single persons, especially considering the punishment. Even if it is admired that other persons were responsible too, this only can lead to a slighter degree of punishment and to the punishment of the other persons involved of course. Who has ever heard of a courtyard judging a government or jurisdiction experts to change the social structures that were leading to the criminal actions, also there is a long tradition within the social sciences pointing out the high relevance and influence of social structures for human behaviour?

But what happens if we take a look on the termguilt from a systemic point of view? There are three basic terms that have to be considered, namelycontingency ,complexity reduction andblind spot (Luhmann, 1995b). In very simple words, contingency means the possibility that things could be different. There are always, in any situation, more aspects of relevance than those we finally react on. There are always more options, than those we finally choose. Remembering theSolomonic Judgment there was for sure the possibility to compare biological similarities between the child and the two women, but in this case this option was not selected. Contingency means that these different options are always possible, but it does not mean necessarily that human beings acting within a certain situation are conscious of these possibilities.

As mentioned before this leads to the process of complexity reduction, a fundamental process regarding human perception, interpretation and action. In very simple words, we choose certain aspects from the contingency of a situation and disregard other aspects. Our interpretations and actions are then resulting only out of the chosen aspects and this of course does not mean that they will have no influence on the remaining aspects that are disregarded. All of our perception, interpretation and action are based on complexity reduction of (social) reality, whether we are aware of this process or not and they will have an inevitable impact on other aspects of (social) reality, whether we like it or not.

This finally leads to the term blind spot. Niklas Luhmann (2004) chooses this term for his systems theory, taking it from the terminology of human anatomy. There the blind spot is the part of the human body, where the optical nerve is linked to the retina. At this small spot there actually is no perception at all. For the light that meets this spot we are simply blind. But if this spot did not exist, if there was no connection between the retina and the brain through this nerve, we would be completely blind. There would be no visual perception at all. Normally we are not aware of our own (anatomical) blind spot. It needs an experimental setting to make us recognize it (Grüsser & Grüsser-Cornehls, 1997). For Luhmann this phenomenon is a characteristic description for perception in general, regarding all possible perspectives. In his terms the blind spot means, that there are not only aspects that are not seen, but that it is also not seen that there truly are other aspects. It means exactly all cases where there is no consciousness of other options within the contingency. It also has to be pointed out that such a blind spot is a necessity itself, because without it there would be no action possible at all. If we truly would try to react on all aspects of (social) reality, we would be so confused and overcharged that we would not be any longer able to choose any reaction at all. For Luhmann (1987, 1992, 1995a) this is of high relevance not only for single human beings but also for the perspective of whole social systems. Of course the legal system is no exception.

The blind spot of a social system is its basic differentiation for the observation of (social) reality and the fact, that this basic differentiation is not doubted at all, also it has no exactly match with (social) reality, because it is also already resulting out of complexity reduction. A social system is not aware of the fact, that this first and basic decision already is a decision and notreality itself . For example the scientific system follows the basic differentiation of true/false and the legal system follows the basic differentiation of legal/illegal. Everything that these social systems are confronted with is located by them into one of these two basic categories and this becomes the antecedent condition of the reaction of the system.

Now, if the aspects chosen out of the contingency are always the same aspects, if the complexity reduction always follows the same road and if this leads to a constant blind spot, this whole process stabilizes a system and through this process the system reproduces itself (Luhmann, 1995b). Of course this description is also a reduction of the complexity of the systems theory, due to the necessity of writing a single paper and not several books. But it can be said, that it represents fundamental characteristics of how systems theory itself deals with (social) reality.

What tells us the systemic point of view about the modern legal systems, especially the criminal law as a subsystem and the question of guilt as an important decision factor? It can be said, that the modern legal systems are representing the question of guilt as a decision factor and by all their actions based on this decision factor, they not only reproduce the system itself but the decision factor as well. Especially the subsystem of the criminal law draws the basic differentiation of guilty/not guilty (respectively innocent), and all persons and actions they are dealing with are located into one of these basic categories during the process of decision making. This process is based on complexity reduction that follows in any case the same characteristic aspects. So, by representing this decision factor, the complexity of (social) reality is reduced by the criminal law to the aspects of single persons and their relations to other single persons. In this case the blind spot means, that it is not seen that there are still far more aspects to be regarded and that this perception and interpretation shows a very high degree of complexity reduction. If there are seen more things, e.g. the influence of social structures themselves, the term guilt becomes a description that fits no longer so well with (social) reality. Other descriptions would be closer to (social) reality, even if it has to be admitted that no description will actually ever fit completely with it, for there will always be a necessary blind spot.

To sum up, it has to be pointed out that the question of guilt reduces the complexity of (social) reality to one characteristic structure among several other potential structures.

Up to this point we can say that there would be other descriptions closer to (social) reality than the question of guilt. But considering that the process of complexity reduction and the existence of a blind spot are necessary aspects of human perception, interpretation and action in general this yet tells us nothing about the question whether this decision factor is a useful option or not. To get closer to this question we will have to take a look at the impacts this decision factor has on other human relations on different social levels besides the modern legal systems. What happens if there are critical situations, if there are conflicts that make decisions necessary, and there is no judge at hand? What happens if within these conflicts the question of guilt becomes the decision factor of other strategies of conflict resolutions?

Two things have to be set straight before taking a look at these conflicts. First, what is meant here by critical situations/conflicts? A critical situation or a conflict within this paper is understood as any moment or period within the life of human beings where they are confronted with situations they never faced before and/or that are regarded as problematic or threatening. So this understanding is close to the definition of a life crisis by Gernot Sonneck (2000), although he focuses strongly on single biographies, whereas here this description is also taken for social groups. Without a doubt also whole societies can consider certain situations as problematic or threatening and so certain periods are defined as critical or as a crisis. Here also the question how to deal with such situations or periods is of high importance.

Secondly we have to be well aware, that of course the people within the situations we will take a look at do not follow the exact understanding of the term guilt, like it is used within modern legal systems. But nevertheless the core principle here stays the same as well. It is a very high degree of complexity reduction that focuses only on the aspects of single persons and their actions without seeing the influence of social structures, especially the influence of abstract principles, like the question of guilt is one. Nevertheless the basic interest of this paper is not spoken words, but decisions and actions.

There are four examples on three social levels that shall be mentioned here. Several others could be given but considering the expected length of such a paper like this, this will have to do.

First of all, let us have a look on the social micro level, where we are dealing with interpersonal and intrapersonal conflicts. Elisabeth Kübler-Ross, a famous researcher who dealt with the phenomenon of grief and grieving, points out that a typical coping behaviour of people dealing with critical situations is tosearch for and punish the one who is guilty . This is a strategy often followed by people who are confronted with a severe diagnosis or that are suffering by the death of a beloved person (Kübler-Ross, 1997; Kübler-Ross & Kessler, 2005). Kübler-Ross also points out that this never absolutely fits with what has happened. It is only taking a small part of reality into account. So, in any case the choosing of this strategy reveals a severe lack of maturity by choosing a very simple solution for a very complex problem. But even more important is another observation she made. Even if this perception completely fits with the perception of other people or society itself, even if there truly is a person identified as solely responsible, as guilty, and is punished, this never leads to an emotional equilibrium for the suffering people. Even if the one who is considered guilty is punished, the one who is grieving is not living a peaceful life in the aftermath. The satisfaction resulting out of this strategy is only lasting for a very short time and the emotion of a restored peace is threatened again by every remembrance of the past events. An emotional equilibrium as an enduring status is reached by a more complex view considering the past, the presence and the possible future (Kübler-Ross, 1997; Kübler-Ross & Kessler, 2005). This point of view can be characterised as an acceptance of what has happened and of the fact that suffering, grief and grieving are anyway linked to human life itself. This point of view also accepts that there are sorts of suffering that are no necessities and that suffering can find healing. But it is for sure that making other people suffer will never put our own suffering to an end and it will of course not change the events of the past.

Looking on the social meso level, we are dealing with conflicts within small social groups, such as families, schools, companies, etc. Here there are two examples to be pointed out. The coping behaviour mentioned by Kübler-Ross plays an important role considering people suffering from traumatic experiences in general. During such a coping process there is a high risk for the development of revengeful desires, especially if certain persons are blamed for the traumatic events (Gurris, 2004). There should be no need to say, that if one member has a wish for vengeance this will never be a source of a peaceful life for the entire social group, no matter what group we are talking about. It also has to be pointed out, that revengeful desires are of high relevance in the context of the so calledschool shootings (Robertz, 2004). From what we know so far, there has to be said, that in fact we do not find in every case an intense relation to violent media contents (especially violent computer games) and also we do not find in every case an intense relation to weapons, even if these are the aspects mainly discussed by the public talking aboutpupils running amok . But what we truly find so far in any case (at least considering those who have been well researched so far) are revengeful desires against single persons (pupils, teachers, etc.), the school/educational system or society as a whole (Expertenkreis Amok [EA], 2009; Gaertner, 2009; Gasser, Creutzfeldt, Näher, Rainer, & Wickler, 2004; Robertz, 2004). As pointed out before, revengeful desires are a serious hint, that there has been a traumatic experience in the past. So, of course we will have to discuss the effects of an intense relation to violent media contents and weapons but this must not lead to a solely focus on these aspects. Even more important we have to seriously ask the question how it is possible, that many pupils develop revengeful desires against the school system and furthermore how is it possible that many pupils suffer traumatic experiences within the schools. Before we are drawing the questionwhat is wrong with our youth (this means nothing else than reducing this complex phenomenon to the aspects considering single persons), we have to draw the questionwhat is wrong with our school system andwhat is wrong with our society (this means nothing else than also taking a systemic point of view seriously into account)?

The second example on the social meso level is a phenomenon calledemotional blackmail , which is a very subtle form of violence and is well known within family therapy. Emotional blackmail is a term for all forms of communications within couples, families, friendships, etc. that force one person to solely blame itself for all problems within the relationship (Forward & Frazier, 1997). Emotional blackmail can appear within simple sentences like,if you truly love me, you would change your lifestyle . More severe forms are verbal and nonverbal messages that intend that someone will loose the support of the family, if he or she shows certain behaviour. So you can say certain options of lifestyles, respectively decisions, are taboo for family members (e.g. the possibility of being gay, getting divorced, etc.). The most brutal form are severe threats likeif you leave me, I will kill myself; I will burn down the house; you will never see your children again and so on. Because especially the announcement of a suicidal intention has to be taken serious in any case it leaves the person who is blamed for it, with no choice but to change its behaviour (Forward & Frazier, 1997; Sonneck, 2000). These most brutal forms have already a severe effect if one of it is made once, if there are several threats that are made repeatedly it becomes a system of controlling the person who is blackmailed. The effects are not only changes of the personality (for the blackmailed person suppresses aspects of the own self concept to fit to the situation). This process is also a serious risk factor for domestic violence, psychosomatic illnesses that can lead to the death of the blackmailed person, and also for suicides and suicidal tendencies (Forward & Frazier, 1997). A deep emotion of being guilty is also a serious risk factor for suicides in general (Sonneck, 2000). Considering suicides and psychosomatic illnesses we are exactly talking about bloodshed that is not so obvious. Here we are talking about suffering, death and people shading their own blood. But from a more complex point of view, these effects on a single person would of course never occur without the behaviour and the decisions of other members of the diverse social groups. We are very well aware of this social phenomenon when we talk ofmobbing, bullying and the call for morecivil courage . Without the fact of people considering themselves as not responsible at all, without the problematic role of thebystanders , there would be way less victims suffering within social groups (Kolodej, 2005; Scheithauer, Hayer, & Petermann, 2003; Zapf, 2007). In other words, without the influence of the bystanders, without the ignorance of responsibility, many victims would never become victims. So, whenever we get aware of people suffering by unjust conditions or communications and we just stand idly by, we belong to the social group who is victimizing them, whether we like it or not. And if we do not feel responsible at all, this for sure does not fit with (social) reality and it is nothing else than a serious hint that we have already taken such a role.

The last example is located on the social macro level, where we are dealing with mass phenomena. Here the question of guilt also appears within the tendency to blame a certain group of people for the problems in the society and/or the suffering of the own group. So the question of guilt is a fundamental factor for the development and the stabilization of a concept of the enemy (Sommer, 2004). It becomes a fertilizer of escalation. It is not only no option for a conflict resolution aiming at an enduring peaceful status, it can be said that it truly ensures that such a peaceful status is far from reach. So it is not by coincidence that Johan Galtung (2007), who is working as a mediator for over 40 years – points out that strategies for conflict resolutions that are aiming on an enduring peaceful status must strictly separate the actions from the actors and furthermore must focus on necessary changes of social structures and communication forms and not on the persons involved.

It has to be pointed out, that the question of guilt is not the only element of concepts of the enemy, but it is a fundamental factor in deed (Sommer, 2004). So it can be said, that without the question of guilt there is still the danger of considering other people as an enemy, but without blaming them such a concept cannot be stabilized for long periods. This is of high importance if we think about the possibility whether a concept of the enemy can be passed on to the next generation or not. If truly a generation is raised that considers the termenemy as a description that does not fit with reality, what would be the meaning of such a change? If we can see, that a concept of the enemy cannot be stabilized without the question of guilt we have to draw another question, that is obviously at hand.

Is there a war possible without a concept of the enemy?

Of course this question cannot be answered by this article but it can seriously be drawn. Imagine a generation for which the point of view that the termsguilt andenemy have nothing to do with reality itself, has become normality. Imagine a generation for which the concepts of guilt and enemies are nothing else but ancient myths. Imagine a generation that considers these concepts as belief of their naïve and superstitious ancestors, which knew to little about the complexity of (social) reality. If this sounds absurd, think about the fact that not so long ago there truly were courtyards following the question whether someone has a covenant with the devil or not as a decision factor (Leder, 2006). What would have been the reaction in this time, if someone told them that one day there will be a generation that considers this belief as absurd and that this question will no longer be a decision factor at courtyards, respectively for legal systems? Well, probably they would have told you that this will never happen, and if it truly will, society itself will crumble and it will lead to nothing else than the apocalypse. Now take a moment and look out of your window. If there is fire and sulphur in the sky and the dead are rising from their graves, try to enjoy the few moments you got left. If not let us go on with this article and let us point out that certain decision factors can truly be overcome and that this can lead to necessary changes of social structures, without bringing on the end of the world. And the question that has to be drawn is: what change could we truly start by overcoming the question of guilt as a decision factor?

Let us sum up. On the social micro level the question of guilt reveals a severe lack of maturity and it never leads to an emotional equilibrium. On the social meso level the question of guilt is intensely linked to the development of revengeful desires and is a serious risk factor for domestic violence, psychosomatic illnesses and suicides. On the social macro level the question of guilt is a fundamental factor for the stabilization and escalation of conflicts and by this relation can be considered as a serious risk factor for wars. In any case on all social levels and within all human relations the question of guilt is far away from fitting with (social) reality and wherever it becomes the decision factor of strategies for conflict resolutions it always becomes a fertilizer of escalation and never leads to an enduring peaceful status.

Now from this point let us again take a look on the question of guilt as a decision factor for modern legal systems. Can it truly be a sign of wisdom? Can it truly be a source of justice? Can this path truly lead to a peaceful society?

At the moment we can say nothing about alternative decision factors that would be a better option. But so far one thing is for sure. Considering the question of guilt as decision factor as a sing of wisdom, a source of justice or a path leading to a peaceful society is NOT BEYOND REASONABLE DOUBT!

What was discussed here so far can for sure not be called some sort of great discovery. These phenomena are very well known within the social sciences. When we are talking of a high degree of complexity reduction considering (social) reality, especially in the context of blaming single persons and social groups for the problems within society, we are very close to what Hannah Arendt (2008) called thebanality of evil – a famous term she used to characterize her conclusions about the sources of the cruelty of the Third Reich. This term also became the subtitle of her book, where she is dealing with the reasoning behind the argumentation of Adolf Eichmann in the courtyard where he finally was sentenced to death.

Already in the 1950s as an important conclusion from the already mentionedStudies in Prejudice Theodor W. Adorno (1995) pointed out, that what he callspersonalization is a serious risk factor for becoming a supporter of fascistic movements, respectively for believing fascistic propaganda. Personalization means nothing else than a certain worldview that is searching for the sources of social problems within the psychic characteristics of the persons involved (especially political leaders) and not within social structures or the characteristics of communication forms. It has to be pointed out that an explanation for the cruelty of the NS-Regime that focuses on psychiatric profiles of the political leadership will probably fit with psychological theories, but not with (social) reality.

Philip Zimbardo (2008) draws the exact same conclusions as results of hisStanford Prison Experiment in comparison to other social experiments (especially theMilgram-Experiments ) and to the recent events of theAbu Ghraib Prison in Iraq. He points out that explanations in the aftermath always focus on searching for single persons with psychopathological profiles that should have been the source for the cruel events. And he points out that these explanations always will fail, for it is the social setting, the social structures, that this violence is emerging from. He calls the worldview that is searching for the sources of social problems within the psychic characteristics of the persons involved and not within social structures or the characteristics of communication formsthe fundamental attribution error (Zimbardo, 2008).

Last but not least speaking in terms of the French philosopher Michel Serres (1980/1987) we could say, that considering the question of guilt as a decision factor we are talking about an abstract principle becoming theparasite of the discussion. Now what does he mean by the termparasite ? This is very close to the reproduction process of a virus. Here we deal with a phenomenon of communication where certain information is copied onto and integrated into every communicative process. You could say that the question of guilt as a decision factor within criminal law is copied as a decision factor onto other strategies of conflict resolutions on all social levels and within all forms of human relations. So the abstract principle ofguilt leaves its imprinting on all decisions without ever becoming the topic of a decision itself. This imprinting, without exception, is always a fertilizer of escalation. This is exactly what reveals the necessity of second order decisions and here the circle is closed and we have returned to were we have started.

Let us sum up. Modern legal systems choose and represent decision factors, which are acknowledged as just or fair by the public. This has an inevitable impact on all forms of human relations on all levels of society. Measures that are based on the question of guilt usually strongly focus on single persons and seize no consequences on necessary changes of social structures. If we think of social structures as a constellation of several actors and their relations to other actors (e.g. a hierarchy), following the question of guilt will simply lead to a replacement of single persons within certain positions by other single persons, but it will not change the constellation or the forms of communication. If we take a look at what we can know from social sciences so far, there is a very high risk that another person in the exact same position within the exact same constellation that follows the exact same form of communications, will truly act exactly like its predecessors. This is no surprise if we remind ourselves that there are always necessary blind spots that lead to a perception that is not aware of alternative options of action than those we are used to (e.g. those of our role models). So, e.g. you take the position of the judge within the constellation of actors at a courtyard that is following the form of communication to restore the public peace by punishing the one who is guilty, there is a very high risk that you will exactly follow this road. If the strategies of the proof of truthfulness you are used to will lead to the interpretation of a particularly serious culpability you will probably draw the decision of a high degree of punishment, just like so many other judges at courtyard did before you. Your only interest will probably be the question whether the accused is guilty or not, probably just like someone several hundred years ago taking the role of the judge in a rigid constellation of actors at a courtyard was only interested in the question whether the accused had a covenant with the devil or not (the form of communication he was used to at courtyards, just like so many judges before him). This reveals a very important aspect, namely the responsibility for people taking our positions within the society when we are gone. Here we are talking about upcoming generations.

We have to be very well aware, that our decisions and our choosing and representation of decision factors will not only have an inevitable impact on other human relations within society but these decision factors will also inevitably influence upcoming generations, their decisions and their view on their own responsibility. These decision factors shape and reproduce those constellations of actors (social structures), which become the social setting in which the members of upcoming generations will take their place. Remember that just replacing a person will bring no change at all, for this we have to bring change to social structures (the constellation of actors and the forms of communications we are used to). Let us think again about the impact of the question of guilt on the stabilization of a concept of the enemy, especially considering the possibility of passing it on to the next generation and what change could be brought by overcoming this decision factor. Such a change can truly be started by modern legal systems choosing and representing alternative decision factors. One potential alternative could be a perspective shift from the question of guilt to a concept of ashared responsibility .

The consciousness of a shared responsibility is already gaining ground, when we are talking about the potential of a climatic catastrophe. Considering climatic changes we are already very well aware of the fact, that our decisions and our behaviour will have an inevitable impact on the life of generations not yet born. It is also clear that there are not a few persons solely responsible for the development of our climate. Of course there are persons with a higher degree of responsibility (e.g. the representatives of governments), but nevertheless there is no person with a complete lack of responsibility (e.g. those who elect these representatives). So if we take a look on conferences debating important decisions considering our influence on climatic changes, probably ten years ago there were no resolutions at all, but nevertheless there was also comparatively little interest in this process at all. There were media reports once at the beginning and at the end of such a conference. Today, there are media reports two weeks before such a conference and several times each day. There are masses of protesting people and at the end we still have no resolutions, but we do have the articulation of a big disappointment. The pressure on the people involved in the process of decision making is growing. So we still have no resolutions but the perspective itself is gaining consciousness. And in a nearby future we will probably have bad compromises, bad resolutions and sooner or later better resolutions and one day truly useful resolutions.

It is obvious that such a perspective shift (of course just changing the term will actually change nothing at all – this would be like one woman inDer Kaukasische Kreidekreis sayingof course I will let my child go while holding its hand as tight as possible) would also better fit with (social) reality not only considering potential climatic catastrophes but also considering the degree of violence and peace within society. Of course we are not talking about a complete excuse for people committing violent acts. They are truly responsible and may also have the highest level of responsibility. But nevertheless no person is completely solely responsible for its own actions, especially if we consider the social/cultural background, the values of the society and/or the social groups, the influence of educational processes, etc. This perspective shift means not, that people are not responsible for their own actions, it means that in deed no one has a complete lack of responsibility, also considering the actions of other members of his/her social group, respectively society as a whole. The question is not, whether this point of view fits better with (social) reality or not. For sure it does. The question is not, whether this point of view will be a better option and a better path to a peaceful society. For sure it will. The question is how such a change can be realized?

Here of course this article cannot give all the necessary answers, it just can give hints. There will also be the necessity of working out concepts to make such a change possible. First of all, we have to be aware of, that the term guilt as it is described within this paper will probably fit well within Christian cultures (for here it is intensely linked to the concept ofsin , with the person itself). Considering other cultures this will probably not work well. So if we are dealing with intercultural communications it will be a better option to switch the terminology from the difference between the concepts of guilt and a shared responsibility to the difference between personalization and a systemic point of view. Here it would be a first fruitful project to work out ontology that deals with different cultures and languages and what terms (especially within the legal systems) are related to this difference.

Secondly, we have to be aware of, that such a process will take a long period of time. Here we are talking about several generations. It is just no realistic point of view, that people that were raised with the question of guilt as a strategy for conflict resolutions will simply overcome this worldview by a learning process. Nevertheless it is also for sure not impossible, that the problematic coping behaviours resulting out of the question of guilt need not to result in violent actions against other human beings. Here we are exactly talking about adult generations standing back (e.g. from their revengeful desires – no matter how rightful this claim may appear to them) for the sake of generations not yet born (e.g. to ensure that their concept of the enemy will not be passed on to this generation).

Thirdly, and this is linked to the second point, the choosing of alternative decision factors for modern legal systems (especially the criminal law) cannot be considered as one single turning point. It will not work to simply change decision factors and expect everything to be fine. Here we are also talking about a long process. We have to seriously think about concepts that on the one hand will improve our actual measures (e.g. alternative options for prison sentences) and concepts that on the other hand will work on necessary structural changes. You can say we will have to travel two roads simultaneously. One road has to improve the measures considering present generations, the other road has to fertilize a peaceful society considering upcoming generations. So e.g. we have to think about an intensified cooperation between legal and educational systems. Legal systems could seriously work out the motivation behind criminal behaviour, especially the linkage to certain values or principles. Especially very problematic values or principles (probably to focus on financial profit rather than on the well-being of the children) could become important aspects of the curricula within educational systems. But this is only one suggestion. Maybe (and probably for sure) there will be better options, but this will be the topic of other work that has to be done, not the topic of this paper.

The probably most important conclusion of this article is that a peaceful society for sure is no utopia at all. It truly can be realized, if we learn to think in long processes (historical view) and to consider also necessary changes of social structures (systemic point of view). So in general you could say we will have to learn to gain a holistic point of view, which will fit much better with (social) reality. This is also of high importance if we look at the development of legal systems as characterised by a process of humanization. Here you can say we have come a long way so far, but there is still a hard path to walk. So far the process of humanization is focused on physical aspects, but there is still a lot to do considering psychical and emotional aspects (think again especially of the phenomenon of emotional blackmail). The process of humanization has to be intensified and for that we have to point out again the necessity of a holistic view on human beings and humanity as a whole. Such a point of view will of course not be the great resolution for all problems, but it truly can be the beginning of a long process leading to such resolutions, starting by helping a worldview of a shared responsibility gaining consciousness considering not only the development of our climate, but the development of a peaceful society as well.

Let us take a last look on the Old Testament. Cain is said to be the first man to strike down another (Gn 4,1–16). He did it out of jealousy and because of what he considered as his rightful role as first born son. But when the Lord came to him, Cain could not hide his crime, for the blood of his own brother screamed out against him from the very ground. Cain just asked the question if he was supposed to be the caretaker of his younger brother. Well, of course he was. Who else? In the end Cain was marked to be protected against the revengeful desires of other human beings that would emerge against him, for what he had done.

Now let us see, that it is up to us – the social sciences, the modern legal systems, educational systems and so on – to be the caretakers of generations not yet born. We have to ensure, that the fruit we are growing for them must not be fertilized with the blood and the suffering of human beings, so that there will be no revengeful desires threatening their future. This also means the suffering of people shading their own blood because they are subtly forced to solely blame themselves. We have to seriously think about what we might consider as our rightful role within history and humanity and where we might have to stand back for the sake of generations not yet born.

Iustitia , the Roman goddess of justice, is blind and will necessarily always be so (at least she will have a blind spot). It is up to us to ensure that she will not be deaf for the suffering of human beings screaming out against unjust social structures and unfair communication forms shaped by unwise abstract principles.

If one day there will be a generation looking back on our period of time and will not be proud of their ancestors, if they will be free to judge us and will smile with pity on us for our naïve and superstitious believes, our concepts of guilt and enemies, we will have done a good job.

Is there hope for a peaceful society for generations not yet born, or is this just an illusion? It is up to us to answer this question, and we will answer it, whether we like it or not. But we will not answer it by our words and discussions. We will answer it by our decisions and actions. If we are wishing for someone else (probably a member of a yet unborn generation) to do what we are considering ourselves as unable to do, we have already drawn our decision, namely to do nothing. We are becoming bystanders of the suffering all around us, bystanders of the cruelties of history. Then we will probably take the point of view of personalization, tucking ourselves in by believing that people who acted differently did so because their different psychic characteristics allowed them to do so. It is nothing else but a longing for heroes. But people considered as heroes are not supernatural. They are human beings. They face the same short lifetime period, the same society, the same fears, the same suffering as result of their different decisions and have the same wish to avoid that suffering. They are vulnerable, they are suffering, they are bleeding and they are dying. The term hero is nothing else than a personalizing justification to let those people stand alone with their decision of not ignoring their part of the whole responsibility that all of us share. This responsibility also includes ensuring that these heroes do not have to be heroes. We all share the responsibility for a society that is no longer longing for heroes, because there is no longer a need for them. If the decisions of a hero are no exception but normality within a society, heroes would not be heroes, they would simply be what they already are and what is not separating them from the rest: vulnerable and mortal human beings. There is no need for more heroes within our society, but there is a need for a society that does not depend on single persons acting heroically.

If we are not only talking and discussing about necessary changes but start to bring them on through our decisions and actions, there also would be no need to hope for a peaceful society for generations not yet born. We actually would become that hope for those generations.

There is no sense in just hoping for a better future without deciding to be a part of that hope.

Is a peaceful society a hope or an illusion? Neither nor. It is our decision.

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Dr. Markus Fath
Wissenschaftlicher Mitarbeiter, LMU München, Fakultät für Psychologie und Pädagogik, Lehrstuhl für Allgemeine Pädagogik und Bildungsforschung.
http://www.edu.lmu.de/apb/personen/dozent/fath/index.html
Markus.Fath@edu.lmu.de