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Concepts of Justice,
Biblical, and Modern:
Contemporary Justice
Biblical Justice
1. Justice divided into areas, each with different
rules.
Justice seen as integrated
whole.
2. Administration of justice as an inquiry into
guilt.
Administration of justice as
a search for solutions.
3. Justice tested by rules, procedures.
Justice defined by outcome,
substance.
4. Focus on infliction of pain.
Focus on making right.
5. Punishment as an end.
Punishment in context of
redemption, shalom.
6. Rewards based on just deserts, "deserved."
Justice based on need, undeserved.
7. Justice opposed to mercy.
Justice based on mercy and love.
8. Justice neutral, claiming to treat all equally.
Justice both fair and partial.
9. Justice as maintenance of the status quo.
Justice as active, progressive,
seeking to transform status quo.
10. Focus on guilt and abstract principles.
Focus on harm done.
11. Wrong as violation of rules.
Wrong a violation of people,
relationships, shalom.
12. Guilt as unforgivable.
Guild forgivable though an
obligation exists.
13. Differentiation between "offenders" and others.
Individual responsibility, but in
holistic context.
14. Individual solely responsible; social and political.
Individual responsibility, but in
holistic context important.
15. Action as free choice.
Action as choice, but with
recognition of the power of evil.
16. Law as prohibition.
Law as "wise indicator,"
teacher, point for discussion.
17. Focus on letter of law.
Spirit of law as most important.
18. The state as victim.
People, shalom, as victim.
19. Justice serves to divide.
Justice aims at bringing together.
Our system of justice is above all a system for making decisions
about guilt. Consequently, it focuses on the past. Biblical
justice seeks first to solve problems, to find solutions, to make
things right, looking toward the future.
Today's justice seeks to administer to each his or her just
deserts, to make sure that people get what they
"deserve." Biblical justice responds on the basis of
need, often returning good for evil. Biblical justice
responds because shalom is lacking, not because justice is
deserved.
Our first, and often only, response after guilt has been
established is to deliver pain as punishment. Once delivered, the
process of justice has ended. When punishment occurs in convenant
justice, however, it is
not usually the end but the means toward ultimate restoration.
Moreover, punishment is primarily God's business. The primary
focus of biblical justice is to make things right, to build
shalom, by acting in aid of
those in need.
Today the test of justice often is whether the proper procedures
have been followed. Biblical or "sedeqah" justice is
measured by the substance, by the outcome, by its fruits. Does
the outcome work to make
things right?
Are things being made right for the poor and the least powerful,
the least "deserving"? Biblical justice focuses on
right relationships, not right rules.
Our legal system defines offenses as violations of rules, of
laws. We define the state as the victim. In biblical terms,
however, wrong-doing is not a contravention of rules but a
violation of rightrelation-ships. People and relationships, not
rules or governments or even a moral order, are the victims.
An alternate term would be helpful, but so far I have not found
an acceptable replacement. So for now I'llstick to crime, keeping
in mind its inadequacies.
Crime involves injuries which need healing. Those injuries
represent four basic dimensions of harm:
1. To the victim
2. To interpersonal relationships
3. To the offender
4. To the community
The retributive view focuses primarily on the latter, social
dimensions. It does so in a way that makes community
abstract and impersonal. Retributive justice defines the state as
victim, defines wrongful
behavior as violation of rules, and sees the relationship between
victim and offender as irrelevant. Crimes, then, are
categ-orically different from other types of wrongs.
A restorative view identifies people as victims and recognizes
the centrality of the interpersonal dimensions. Offenses are
defined as personal harms and interpersonal relationships. Crime
is a violation of people and of relationships.
Understanding Of
Crime:
Retributive Focus
Restorative Focus
1. Crime defined by violation of rule (i.e., broken
rules).
Crime defined by harm to people
and relationships (i.e., broken relationships).
2. Harms defined abstractly.
Harms defined concretely.
3. Crime seen as categorically different form other harms.
Crime recognized a s related to
other harms and conflicts.
4. State as victim.
People and relationships as
victims.
5. State and offender seen as primary parties.
Victim and offender seen as
primary parties.
6. Victims' needs and rights ignored.
Victims' needs and rights central.
7. Interpersonal dimensions irrelevant.
Interpersonal dimensions central.
8. Conflictual nature of crime obscured.
Conflictual nature of crime
recognized.
9. Wounds of offender peripheral.
Wounds of offender important.
10. Offense defined in technical, legal terms.
Offense understood in full
context; moral, social, economic, political.
Offenders must be held accountable, but so too must society.
Society must be accountable to victims, helping to identify and
meet their needs. Likewise, the larger community must attend to
the needs of
offenders, seeking not simply to restore but to transform.
Account-ability is multidimensional and transformational.
Understanding Of
Accountability:
Retributive Focus
Restorative Focus
1. Wrongs create guilt.
Wrongs create liabilities and obligations.
2. Guilt absolute, either/or.
Degrees of responsibility.
3. Guilt indelible.
Guilt removable through repentance and
reparation.
4. Debt paid by taking punishment.
Debt paid by making right.
5. Debt owed to society in the abstract.
Debt owed to victim first.
6. Accountability as taking one's "medicine."
Accountability as taking responsibility.
7. Assumes behavior chosen.
Recognizes difference between potential and
actual realization of human freedom.
8. Free will or social determinism.
Recognizes role so social context as choices
without denying personal responsibility.
The Process Must
Empower And Inform:
Judges and lawyers often assume that what people want most is to
win their cases. But recent studies show that the process matters
a great deal, and that the criminal justice process often does
not feel much
like justice. Not only what happens but also how it
is decided is important.
Justice has to be lived, not simply done by others and reported
to us. When someone simply informs us that justice has been done
and that we should now go home (as victims) or to jail (as
offenders), we do not
experience that as justice. Justice which is actually lived,
experienced, may not always be pleasant. But we will know that it
has happened because we have lived it rather than having it done
for us. Not simply justice, but the experience of justice must
occur.
The first step for restorative justice is to meet immediate
needs, particularly those of the victim. Following that,
restorative justice should seek to identify larger needs and
obligations. In identifying these needs and obligations, the
process should, insofar as possible, put power and responsibility
in the hands of those directly involved: the victim and offender.
It should also leave room for community involvement.
Second, it should address the victim-offender relationship by
facilitating interaction and the exchange of information such an
offense occurs, immediate and intensive aid is offered to victims
and survivors.
The support offered is holistic. It concentrates not simply
on their legal needs, but on emotional and spiritual needs.
Staff persons walk through the victimization experience with
victims. In the process they help them in providing full
information to the "system" about their experience.
During that process, victims are allowed some involvement in
decisions such as bail and even sentencing, for example through a
victim-offender encounter. Given all that support and
participation, victims' wishes often turn out to be surprisingly
creative and redemptive. At minimum, their needs are addressed
and the various dimensions of the harm are recognized.
The ideals of direct victim-offender interaction and empow-erment
cannot always be fully attained. Some third-party decisions are
inescrapable. Cases with important implications for the
comm-unity cannot simply be left up to victim and offender. There
must also be some sort of community oversight. But these cases
need not set the norm for how we view and respond to crime. Even
in such cases, we need to keep before us a vision of what crime
really is and what really should happen.
Justice Involves
Rituals:
Our legal system makes much of ritual. Indeed, trials are to a
large extent ritual, drama, theater. But we usually ignore the
most important needs for ritual.
One of these points of need is when an offense had occurred. This
is where the ritual of lament, stated so eloquently in the
Psalms, is appropriate. "Genesee justice" has
recognized this need by facilitating
religious services of lament and healing for those who are
interested. But as justice is done, whether complete or
approximate, we also need rituals of closure. These "rituals
help to reorder." They may be
important for both victim and offender. Such rituals provide an
arena in which the church could play a particularly important
role.
Is There A Place For Punishment?
Punishment should not be the focus of justice. Rather is there
room in a restorative concept for some forms of punishment?
Certainly options such as restitution will be understood by
someaspunishment, albeit a more deserved and logical punishment.
The real question, then, is not whether persons will experience
some elements of restorative justice as punishment, but whether
punishment intended as punishment has a place. Pain should
be applied simply as
punishment, not as a way of reaching some other goal such as
rehabilitation or social control. To apply pain with other
utilitarian purposes is to be dishonest and to use people as
commodities.
When we mourn a death, we mourn for the sake of mourning, not for
some other purpose. We inflict pain only under conditions which
will reduce the level of pain-infliction. Perhaps punishment
cannot be eliminated entirely form a restorative approach, but it
should not be normative and its uses and purposes should be
carefully prescribed. The biblical example suggests that the
goal, nature, and context of punishment is
critical. In the biblical context, ie, punishment usually is not
the end. It aims at liberating and creating shalom.
Biblical justice is administered in a context of love.
Possibilities for forgiveness and reconciliation are the light at
the end of the tunnel. Punishment is limited, while love is
unlimited. Redeeming love, not
punishment, is the primary human responsibility.
When we as a society punish, we must do so in a context that is
just and deserving. Punishment must be viewed as fair and
legitimate. We cannot experience justice unless it provides a
framework of meanings that make senseof experience. For
punishment to seem fair, outcome and process need to relate to
the original wrong. However, the societal context must also be
viewed as fair, and this raises larger questions of social,
economic, and political justice.
If there is room for punishment in a restorative approach, its
place would not be central. It would need to be applied under
conditions which controlled and reduced the level of pain and in
a context where
restoration and healing are the goals. Perhaps there are
possibilities for "restorative punishment." Bear in
mind that the possibilities for destructive punishment are
much more plentiful.
Two Focuses:
Earlier I summarized briefly the retributive and restorative
lenses. These two perspectives can be formulated in somewhat
longer form.
According to
retributive justice:
1) crime violate the state and its laws,
2) justice focuses on establishing guilt,
3) so that doses of pain can be measured out,
4) justice is sought through a conflict between adversaries,
5) in which offender is pitted against state,
6) rules and intentions outweigh outcome.One side wins and the
other loses.
According to
restorative justice:
1) crime violated people and relationships,
2) justice aims to identify needs and obligations,
3) so that things can be made right,
4) justice encourages dialogue and mutual agreement,
5) give victims and offenders central roles, and
6) is judged by the extent to which responsibilities are assumed,
needs are met, and healing (of individuals and relationships) is
encouraged.
Justice which seeks first to meet needs and to make right looks
quite different from justice which has blame and pain at its
core.
The following chart attempts to contrast some characteristics and
implications of the two concepts of justice.
Understandings Of
Justice
Retributive Focus
Restorative Focus
1. Blame-fixing central.
Problem-solving central.
2. Focus on past.
Focus on future.
3. Needs secondary.
Needs primary.
4. Battle model; adversarial.
Dialogue normative.
5. Emphasizes differences.
Searches for commonalities.
6. Imposition of pain considered normative.
Restoration and reparation
considered normative.
7. One social injury added to another.
Emphasis on repair of social
injuries.
8. Harm by offender balanced by harm to offender.
Harm by offender balanced by
making right.
9. Focus on offender; victim ignored.
Victims' needs central.
10. State and offender are key elements.
Victim and offender are key
elements.
11. Victims lack information.
Information provided to victims.
12. Restitution rare.
Restitution normal.
13. Victims' "truth" secondary.
Victims' given chance to
"tell their truth."
14. Victims' suffering ignored.
Victim's suffering lamented and
acknowledged.
15. Action from state to offender; offender passive.
Offender given role in solution.
16. State monopoly on response to wrongdoing.
Victim, offender, and community
roles recognized.
17. Offender has no responsibility for resolution.
Offender has responsibility in
resolution.
18. Outcomes encourage offender irresponsibility.
Responsible behavior encouraged.
19. Rituals of personal denunciation and exclusion.
Rituals of lament and reordering.
20. Offender denounced.
Harmful act denounced.
21. Offender's ties to community weakened.
Offender's integration into
community increased.
22. Offender seen in fragments, offense being definitional.
Offender viewed holistically.
23. Sense of balance through retribution.
Sense of balance through
restitution.
24. Balance righted by lowering offender.
Balance righted by raising both
victim and offender.
25. Justice tested by intent and process.
Justice as right relationships.
26. Victim-offender relationship ignored.
Victim-offender relationship
central.
27. Process alienates.
Process aims at reconciliation.
28. Response based on offender's past behavior.
Response based on consequences of
offender's behavior.
29. Repentance and forgiveness discouraged.
Repentance and forgiveness
encouraged.
30. Proxy professions are the key actors.
Victim and offender central;
professional help available.
31. Competitive, individualistic value encouraged.
Mutuality and cooperation
encouraged.
32. Ignores social, economic, and moral context.
Total context relevant behavior.
33. Assumes win-lose outcomes.
Makes possible win-win outcomes.
Retributive justice, restorative justice. The world
looks quite differently through these two focuses.
Retributive justice, we have. It may not do what needs to be
done, or even what its practitioners claim it does, but it
"works" in the sense that we know how to carry it out.
What about the more elusive perspective called restorative
justice: Where do we go from here?
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