What if Lady Justice were omnipartial? A new legal culture based on empathy and care might inspire a better use for that blindfold of hers. Credit: Laura Beckman (laurabeckman.com).
Like a rose that has sprouted in a weed garden and induced the weeds to back away in awe, the restorative justice movement has entered American legal culture and is posing an important challenge to core assumptions about human beings and about the very nature of human reality that our legal culture has taken for granted for more than two hundred years.
The United States itself was founded on a principle of human freedom that presupposed an inherent antagonism between self and other, a belief that the essential meaning of liberty was that we need to be protected against other people. This Fear of the Other was in part a rational response to the religious, social, and economic persecution that had in part characterized previous historical forms of social life, but it also introduced its own distortion into our liberal social fabric: it gave rise to a conception of social being that conceived of human beings as socially separated “individuals” who might form voluntary relationships with others through love, or through contracts, or through voluntary religious and civic organizations, or through democratically elected governments with strictly limited powers, but who at bottom needed always to hold in reserve the memory that the other posed a threat to one’s liberty and who therefore required a binding legal culture that placed “the rights of the individual” above all other social goods.
Implicit in this worldview has been the conviction that we are not inherently connected beings whose fulfillment comes through our mutual recognition of one another, through the inherent bond of our social nature that is completed through the embrace of love and solidarity, but rather that we are cast into the world as disconnected monads who only come into relation after the fact of our individual incarnations, with the borders between us being in need of constant policing to make sure that the seduction of trust never leads us to let down our guard. While we might “voluntarily” engage in any foolish dependency on the other that we choose, the law is always there to guarantee “as a matter of law” that nothing actually binds us except our mutual and solemn commitment to our everlasting ontological separation.
Liberty as Spiritual Separation in American Law
As you read this from within your own private space, as you float through the solitude of your day, consider how the institutions of American law condition and envelop you in the spiritual prison of your separation. You are a citizen in a democracy, but the most fundamental right that defines that democracy is the “secret ballot” rather than a process expressive of any communal bond that unites us. You are legally bound to all others through a “constitution” that protects you against, and therefore affirms the constant threat of, infringement on your right to freedom of speech, of religion, of association, and your right to be protected against others searching your house or making you quarter soldiers or taking away your guns … but that binding constitution affirms nothing about our connection to one another and therefore offers no commitment to making sure that our social connection will be realized through our legal process. {{{subscriber|2.00}}} [trackrt] The substantive law of property guarantees that we can own separate land parcels and exclude others from those parcels, but affirms no binding obligation to share the land, or the food that it produces, or the shelters that we construct upon it. The law of contracts guarantees our freedom to enter binding agreements with others, but in a social context that assumes we are competitors in a marketplace whose goal is to get the benefit of our bargains, rather than “cooperators” whose intention is to realize ourselves through mutual fulfillment and shared objectives. Tort law assures we are protected against others who might pull a chair out from under us as we sit down to the dinner table, or intentionally or negligently harm us on highways or in the operating room or through the consumer goods we buy in their stores, but it does not affirm that we have any duty to care for each other, to rescue each other if we are in distress, or to otherwise act in accordance with a bond emanating from our common humanity. Under the law of corporations, shareholders are assumed to be anonymous investors seeking as discrete individuals to maximize their short-term profits and to be bound to each other solely by that goal, rather than to be socially responsible beings united by a corporate aspiration that will further the well-being of the community or the planet. And finally there is the criminal law, which understands social violence of all kinds as freely chosen individual acts against the state calling for punishment of the individual actor rather than as social acts expressive of distortions within an inherently social fabric that call for repair of the social fabric itself.
The conviction that we can only be bound by our separation and not by our connection is reflected not only in the substance of law, but also in our forms of legal reasoning and our embodied legal processes themselves. We have learned to equate “due process” with the adversary system, which defines conflicts as contests between opponents who cannot trust each other to tell the truth and who therefore have every right to tear each other down through cross-examination even if one believes the other side is telling the truth. Each side in the gladiatorial combat is encouraged to aggrandize the correctness of his or her own position, to never admit weakness or doubt or frailty for fear of undermining one’s case, and to demean and minimize the other side … because that is the only way to absolutely guarantee that no one in the proceeding—neither judge, jury, nor one’s adversary—will be taken in by misplaced trust. Evidence is limited to empirical proof of hard facts, past human experiences emptied of feeling and presented as mere observed behaviors, subject to relentless testing for misperception or hearsay, because “allowing in” the meaning and feeling of past events would be inherently subjective and could not be trusted to be presented or heard without bias and distortion. And hovering over the entire proceeding are the rules, with justice being defined as accurate application of the rules to the facts according to an analytical form of legal reasoning—the clever product of the much venerated “legal mind”—that excludes compassion or empathy or care or the aspiration to a world based on love and understanding, and instead valorizes logic and “common sense,” the common sense of a world based on individual self-interest and perception of the other as a stranger whose interests clash with rather than complete our own.
The Genius of the Liberal Legal Framework and the Harm Created By It
As unflattering a portrait as I have painted here of our inherited legal culture, we cannot but recognize the genius that animates it and that unifies all its elements. If one wished to construct a binding image of the social world that would maximally protect the individual against all of the possible evils of subjection to the other that have occurred throughout history—slavery, serfdom, the burning of millions of women at the stake for heresy and witchcraft, cruel and unusual punishments like drawing and quartering or the stockades, every form of demonization through superstition, projection, and magical thinking—the generations that preceded ours did a remarkable job of inventing a system of justice that was alert to the risk of the threat posed by the other at every turn. And we should admire and embrace the equally remarkable accomplishments for which this commitment to individual liberty has been in significant part responsible—the partial overcoming of the inherited social hierarchies of the aristocracy, and more recently of racism, sexism, and, increasingly, homophobia by gradually eliminating as a matter of law the legitimacy that these stereotypes and negative judgments could formerly claim. While the liberal revolutions of the late eighteenth century could not directly address and overcome the causes of these forms of social injustice because their own worldview recognizes only the rights of socially separated individuals rather than the need for a legal culture and process to heal the social distortions of an inherently socially connected, interhuman universe, it is nonetheless true that the historical affirmation of the dignity of the individual that was born in the Enlightenment and became binding on us one to the other at the end of the eighteenth century has made an immense contribution to our autonomy from the church, the state, inherited caste systems, and all other ways that exploitation and domination by the other had previously been legally justified.
Yet as we now look out at and live within the envelope of the world we have thus created, we must come to realize by a kind of evolution or enlightenment—by “waking up”—that the liberal framework, the framework of separation, is not only inadequate but harmful. It is harmful because it mischaracterizes a hopeful, potentially loving, potentially mutually confirming and anchoring collective destiny as a destiny of solitudes. And because the liberal worldview is not merely a matter of opinion, but is made binding through law on all citizens, it forms a kind of constant unconscious backdrop that others are receding away from us, that we must pursue our own self-interest, protect ourselves, and endure the pathos of our lives and deaths as solitary beings. Still more, because we in reality are not solitary beings but beings animated by the longing for mutual recognition, affirmation, and love, the liberal worldview inevitably generates a kind of chronic social paranoia that results from the contradiction between the interhuman truth of our social nature and the social message that the other cannot be trusted. As a way of “mediating” this contradiction, of trying to satisfy the need for connection with others in a social world in which others are presented as a threat to our individual safety and integrity, many of us are drawn to grandiose, imaginary collective identities of perfect unity (the Nation, God, the Family, the Gang) accompanied by demonization of other groupings who become the repository of our fear of nonrecognition and humiliation that our own longing for love, acceptance, and recognition will be rejected rather than reciprocated. In this way, the liberal paradigm actually tends to create and recreate the very forms of unfreedom and inequality that in its conscious aspect it seeks to delegitimize and eradicate. Thus as Dr. Seuss suggests in The Butter Battle Book, in the world as it is we may use legal means to eliminate racism, sexism, and other traditional forms of demonization only to turn to dividing the world between those who butter their bread on one side and those who butter it on the other.
Transcending Liberalism: A New Vision of Legal Culture
So as much as we support the great accomplishments of the liberal revolutions and as much as we should continue to fight for the remaining liberal gains not yet won (like the right to gay marriage) within that past and passing paradigm, we need also to support the transcendence of that paradigm toward a new vision of law and legal culture that seeks to foster empathy, compassion, reconciliation with the other, and the fundamental rediscovery that the other is not essentially a threat, but the source of our completion as social beings.
Along with the remarkable Truth and Reconciliation Commission in South Africa, which demonstrated that a legal process can be used in the service of healing even terrible acts of social violence and which made possible the overcoming of Apartheid without the extensive bloodshed and counter-violence common to prior revolutions, the most significant harbinger of the new paradigm has been the restorative justice movement to which we are devoting this special issue of Tikkun. The critical difference between restorative justice and the liberal model of justice that we have inherited from prior generations is that restorative justice begins by embracing an ideal of justice not as a blind woman deciding without prejudice which of two equal individuals has the better right to be vindicated under the law, but rather Martin Luther King’s ideal of justice as “Love correcting that which revolts against love.” In other words, restorative justice begins with a worldview in which we are already in relationship, and in which our greatest aspiration is to realize the possibility of mutual understanding and acceptance through new spiritually alive legal processes that are designed to try to heal the distortions that have masked that possibility of healing and redemption from us.
As you read about the ways of restorative justice in the essays that follow, with their emphasis on the importance of taking responsibility, performing restitution to those harmed, and aspiring to apology and forgiveness as means of reintegrating broken relationships and sometimes knitting together and repairing whole communities, try to imagine a world in which restorative justice processes are being conducted on a daily basis in the city halls and other major civic buildings in the center of the cities or towns that you live in. Imagine how much this change in the legal culture of your city or town would alter the way you perceive your neighbors and the spiritual and moral character of communities and neighborhoods that surround you. For it is in the public manifestations of restorative justice that its true social impact will be felt: its capacity to establish through public visibility and legitimacy that we are coming to recognize and publicly acknowledge what we have known and longed for all our lives—that we are in this together, that we are not infinitely and eternally separated by what divides us, and that while acknowledging and respecting the contributions to us of our forefathers (or, if you like, our “founding fathers”), we can risk leaving them behind.
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(To return to the Winter 2012 Table of Contents, click here.) Also, don’t miss the seven freely accessible online exclusives associated with this special issue on restorative justice — to read them, click here.