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Originally published in Contemporary Justice Review the Journal of the Justice Studies Volume 15, Issue 2 -- June 2012
Dennis Sullivan’s treatise ‘Rambling Through the Fields of Justice’ is a satisfying read, in and of itself. In writing it, Dennis has demonstrated that he knows what justice really is. However, more service can be done to justice’s description and definition. I thought I would try to do so by attempting to re-frame justice itself, taking the restorative justice perspective as a point of departure. We know, of course, of restorative justice as a titular movement for change, for reform of western cultures’ punishment-based systems. That is what the term means in the conventional contemporary context. Yet few stop to think that in the original cultures from whom the west borrowed many of the methods we now call restorative justice, all those who first used those methods were trying to do was achieve something fairly simple … justice itself. The western concept of justice hearkens back to an ancient people -- the Hebrews. The 3000-year-old tablets found in el-Amarna, Egypt tell us that proto-Semitic peoples of the Palestine region once worshipped a goddess whose name (approximated) was, in their mode of writing (without vowels), S-L-M. From this ancient name, many others and concepts have sprung, to wit; Salem, Salome, Shalom, Shlomo, Islam, Salaam, Muslim, etc. In Hebrew, as studied by rabbis, this name is still known as holy writ, effectively one of the names of G-d. That is not to say that the Jews originated the concept of justice, mind you. On the contrary, it appears that justice is as old as the phenomenon of human beings sitting in a circle and talking things out. It just happens that the tribal traditions of the Jews gave us in the West our primary reference for justice, as the conceptual vocabulary we use to describe it (and many other things) was passed down to us through Hebraic writings, especially through the Bible. Never forget that among the seven articles of the postdiluvian Noachide Covenant, the last one -- and the only one articulated as a positive, affirmative instruction -- was ‘Thou shalt establish systems of justice’. So today, when we talk about restorative justice as, say, the peacemaking circles of Native American peoples, or the Gacaca of the Rwandans, or the Family Group Conferences passed on to us by the Maori, perhaps we are merely talking about a process, outcome, or thing that is universal, as second nature to humanity as sitting in a circle, perhaps around a fire, maybe sharing a meal, etc. Certainly, we are talking about methods that generate vastly superior participant satisfaction than, say, judicial punishments. Maybe human beings are genetically hard-wired for peace and justice, and
maybe, just maybe, the triumph of evil is only possible when our true inner human nature is interfered with epigenetically by violence and oppression in our lives and cultures. Classical knowledge is sophisticated enough to give us a statuary representation of Lady Justice (akin perhaps to Lady Liberty). Ms. Justice, if you will, is depicted blindfolded, holding a sword in one hand and a set of scales in the other. The scales are often lopsided, as if there were an unequal weighing of two things, with Ms. Justice blind to the fact of this inequality. Perhaps the point is that in the real world, and especially in terms of justice, true equality is very rare. I believe, however, that the statuary representation of the scales is testimony to the fact that while justice can almost never embody true equality, particularly in its outcomes, and can, of course, never really return participants to status quo ante, justice can assess equity … the state of affairs where outcomes are as nearly equitable as possible. In other words, whether harms have been reduced or ameliorated as much as possible, with no new harm being done. This is why, in answering the perennial questions in matters of restorative justice, ‘What is restored, to whom, and how?’, we ultimately come to the realization that it is the community, via its human relationships, that is restored, though this restoration is all too seldom seamless. Scars from harms and injuries may remain, and indeed, even the most forgiving and charitable of people can be heard to say that while they forgive, they shall not forget. So, while it is a handy nom de guerre for a handful of methods that are being used by scholars, researchers, practitioners, teachers, and activists to wrench modern so-called justice methods back to the origins and precepts of true justice, restorative justice may actually be said to factually and truthfully represent nothing more nor less than justice itself. [If you have noticed the reference to an ancient proto-Semitic goddess, and the allusion to justice as a classical statue of a woman, you may also wish to infer that justice -- the postdiluvian version -- is also essentially feminist. I make these references deliberately, and would be inclined to agree.] Much of what Sullivan has written is in the character of a lament. Why is justice not taught in schools? Why do so few people understand what justice really is? The answer, in broad strokes, is that tribal teachings are, by and large, still only passed on in the tribal context. But also that, for today’s ‘modern’ world, the tribal context, by and large, simply no longer exists. Most of us no longer live in, or migrate among, our hunting grounds. We have settled, beginning with agriculture, and begun to produce more than what we need to sustain ourselves. And since we began to produce more than what we needed, our populations commenced to grow far beyond what the old tribal ways would, or could, have supported. We have found ways to produce geometrically more and more. With this questionable outcome also came feast and famine, hardship and prosperity, giving rise to wars over resources, beginning of course with food and water, and progressing
through lebensraum to the current trans-global struggles for energy resources and access to rare technologically-useful minerals. Yet still, in addition to tribal ones, a few modern-age societies have realized en corpus that western ways have gone ‘beyond the pale’, and have forgotten cardinal virtues such as justice. The Amish in the USA are a good example. While, at first blush, their plain clothing, primary educational system, and refusal to adopt higher technologies seem to be a knee-jerk reaction to western advancements, when studied closer, one finds in the Amish a very valid final arbiter to their policies -- family and community relationships. From television, to automobiles, to profligate telephones and computers, the Amish refuse to adopt anything that would take them away from one another; that is, from family and community into their own little individual worlds. You can perhaps recognize part of the sentiment behind this when you reflect on the last time you spoke in person with a teenager as they started texting someone else in the middle of your conversation. Are Amish concerns valid? Obviously by their standards, the answer is in the affirmative. Do they take things too far? Many would say so. However, the 2006 incident at Nickel Mines, Pennsylvania taught the world a lesson in forgiveness, and is still widely remarked upon as an example of true, ‘pure’ justice. In a world rife with injustice and inequality, how is it possible to teach justice, particularly in the academic setting? In western societies, justice-making is, by and large, relegated to gowned and decorous judges, sitting in staid and ornate courtrooms, who are appointed largely because they have demonstrated their support for, and non-threatening stance toward, the hierarchical and economically inequitable systems in which they live. Our only gesture toward ‘justice-keeping’, if you will, is the guns and other weapons we place in the hands of our uniformed service members, mostly the police and armed forces, along with the pronouncement or tacit premise that the state has a monopoly on violence. From a whole host of observations, I have come to the conclusion that justice is a function of true community, along with the corollary belief that the state is pretty much incompetent to foster justice. Hence in Vermont, from whence I write, restorative justice has become, at least in name, the law of the land, as a new institution – the community justice center -- has sprung up in our 12 largest cities and towns to practice mediation, family group conferencing, and a Vermont hybrid method called Reparative Probation. Since these centers also benefit from State funding, the mission of justice cannot reasonably be said to have fully been taken back from the state by our communities. But at least a large plurality of our residents have come to realize that this would be acceptable, even desirable. So what is restored, to whom, and how? For me, the answer is equity, best understood as the equitable fabric of relationships which constitute true community. What is restored, in effect, is ‘the peace’.
In that proto-Semitic concept of Shalom, one finds a triad of component virtues: justice, peace, and a third virtue variously referred to as integrity, wholeness, salvation, healing, etc. Thus, no true measure and estimation of what justice really is can be articulated without reference to those other component and inseparable parts – stitched together as a whole, what is known in Hebrew as Shalom. The Campaign for Equity-Restorative Justice (CERJ) was founded in 1997 with the goal of making restorative justice a household concept. Perhaps we did not exactly succeed, but the Campaign helped to spark and inspire many new initiatives. In 2004, for its last major project, CERJ organized and sponsored a series of workshops in the maximum-security US prison at Fort Leavenworth, Kansas. Based upon the Alternatives to Violence Project model and curriculum, these workshops also included an advanced restorative justice module, plus a third module based on traditional Navajo (Dineh) peacemaking, which was led by Philmer Bluehouse, an itinerant traditional Navajo peacemaker, and by Robert Yazzie, who had just retired as Chief Justice of the Navajo nation. In this way, we carefully considered our ‘audience’: USP Leavenworth has many First Nations men as inmates, including, at the time of our workshop, the renowned political prisoner Leonard Peltier. Later in 2004, realizing that our mission was essentially educational, we, the members of the CERJ network and coalition, resolved to reconstitute ourselves as an unconventional educational institution known as John Woolman College of Active Peace, naming ourselves after a colonial American Quaker minister who, in the late 1700s, campaigned among his fellow Quakers to release their slaves. Woolman was thus widely credited with giving Quakers the post-colonial moral authority to confront slave-holders (and consumers) of other religious traditions for the purpose of ending slavery altogether. In our lifetimes, many of us have borne witness to, and perhaps even experienced, genocide, civil war, proxy war, world war, and every other kind of war one could possibly imagine -- probably even a few that one could not. Von Clausewitz famously said “War is the continuance of diplomacy by other means.” Yet the very concept of diplomacy already presupposes some estrangement. How odd it is, at the end of the day, that most people only understand peace as the absence of warlike fighting. Where we once had ‘Pax Romana’, we now have the ‘Pax Americana’, or more properly the 500 years of wars and conquest sparked by the European Renaissance, particularly its technological innovations, which permitted and abetted world conquest. Today we bear witness, and are subject, to a continuance of trends in international relations that began with Greece and Rome, and before them Alexander, the Hittites, and other peoples who created empires, and which perhaps found their classical European articulation beginning with Clovis of the Franks, the first European king who professed Christianity, and his violent and dramatic demonstrations of what we now think of as Christian Exceptionalism. Suppose we were to teach and understand peace from a different theoretical basis; something simple and memorable? Suppose we postulate a tri-partite concept of our
own, Active Peace (including justice, of course), composed of three components, peacemaking, peacekeeping, and peacebuilding? Peacebuilding, a term now in vogue but often misconstrued, is the fostering of right relationships through principled development -- the creation of food, clothing, shelter, and other necessities of life … the spreading of a minimal standard of prosperity to all. Many, if not most, vocations, professions, crafts, and arts could be understood as peacebuilding, a concept destined to encompass most of what we all cherish and hold dear about our homes, our communities, our lands, and our peoples. Where violence and inequitable circumstances occur or persist, peacekeeping is understood, at its most basic, as nonviolent resistance -- nonviolent accompaniment of the vulnerable and oppressed -- and speaking out for those who have little or no voice. One of the purest peacekeeping missions today is the Nonviolent Peaceforce, a group with ties to Friends Peace Teams and Christian Peacemaker Teams. Peacekeeping often requires a broader or more specialized educational preparation, and must be exercised and articulated with a different order of wisdom than, say, the artisan whose dedication is to quietly pursue a trade in the community context. Yet, both are obviously part of Active Peace. Peacemaking, finally, is any of several types of applied exercises in intervention, or constructive social group processes. Restorative justice, in particular, is comprised of a number of distinct peacemaking methods. These methods have as their result, and their raison d’etre, the transformation of conflict, having left behind the erroneous notion that conflict can be resolved. There is conflict in all facets of human life, and the full measure of our humanity lies in how we respond to it. When the objectives of the restorative justice movement are fulfilled, justice will be known as inseparable from peace. There will be no more statesponsored murders, assassinations, official retaliations, or summary “justice” as practiced increasingly today. Punishment will come to be seen for what it really is: the continuation of cycles of violence. And today, we have, in the west, several great institutional orders based on the continuation of cycles of violence. We have military-industrial complexes and prisonindustrial complexes. We have great industries and investment houses, now more successful and grand than ever before, largely because of the worldwide popularity of violence (and the concomitant financial profits). We have whole systems, including perhaps the nation-state system itself, whose primary competency is the promulgation of violence. And so much of it is done in the name of freedom and democracy. Go figure! When will we understand that we are prey to, and/or subject to the influence of, over 3000 years of conquest cultures and power elites? Has it always been in others’
pecuniary interest to cloud and obscure the true nature of justice and peace? Will they always take power away from the people, where it belongs, and arrogate it into the hands of the few? The 1% and the 99% -- the allusion is clear. Are we waking up? Do we dare to even begin to believe that we can wake up enough to foster equitable human systems of peace, justice, and prosperity? I believe that it is high time for the rebirth of the wholistic teaching of the true nature of justice, peace, and human integrity. These are inseparable concepts, and must be taught in conjunction with one another. Our judges and lawyers must become facilitators and mediators. Our police and armies must become nonviolent accompaniers. We must embrace the vision of our tradespeople, craftspeople, artisans, and those of every other constructive and necessary endeavor as true, conscious agents of Active Peace. There is one concept around which justice, peace, and integrity can rally -- healing. When all is said and done, all that is done in the name of true justice is also, inescapably, done in aid of healing. Those in crisis are brought into circumstances where their healing and recovery can be promoted. Those who are victims of violence (or their survivors) are understood to need grief work, which often cannot be rushed, but which can sometimes see dramatic transformations with the application of specific peacemaking methods. Victims’ perennial questions, ‘Why?’ and ‘Why Me?’, can indeed have appropriate answers once restorative justice is understood to be a victims’ right. And cycles of violence can finally be broken once victims understand that neither their rights, nor ‘just deserts’, include seeing violence done to their own violators. The interests of society in breaking cycles of violence far transcend the drastic, though sometimes understandable, wishes of any victim for retaliation. Only in this manner can justice – true, healing justice -- justice as active peace -- be served.
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