Concepts of Justice,
Biblical, and Modern:
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
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:
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:
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.
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
1. Blame-fixing central.
2. Focus on past.
Focus on future.
3. Needs secondary.
4. Battle model; adversarial.
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.
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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