If I speak of my own brushes with the law I have two kinds of experience. The first sort comes from having made a mistake, a car accident for example; in these cases the law has been lenient, even kind. The other sort is not so nice. I had to attend a hearing over my father's estate when I became his trustee. I decided to care for his money the way he did. As an example, dad gave each grandchild money after high school graduation. I did the same. I went to the hearing to ask the judge for permission to continue his practice. The judge said no. Because I was an impertinent presence during the hearing (I kept interrupting the judge and asking questions, making my lawyer nervous), and likely because there was no one else in the room at the time, the judge chose to tell me a story to help me figure out how to use my father's resources wisely. He said: Suppose your father lived to be 104 years old and suddenly came to his senses. He would examine how you spent his money. He must find much more money in the bank than when you took over. The judge felt pleased with himself. He had protected dad's money from the likes of me. I was astonished. First of all, my father was not going to wake up at 104 years old. What cruel and ridiculous twaddle! And secondly, if he did, my particular father would not thank me for piling up his cash. He hated paying income tax. He was a man of traditional needs: he had food on the table and a roof over his head. The judge was an entrepreneur. They were very different. Yet, because the judge had the power and my father and I did not, I had to obey the judge. I was furious. I still remember wanting to grab him as soon as he stepped off the bench and ask him a few questions. I thought I could win an argument as long as the two of us were standing on level ground.
The second story is told by Arthur Boers in his book, Justice that Heals (1992). A man had been charged with assault causing bodily harm and came before a judge. He did not hire a lawyer. He appeared on his own behalf. He was a big, muscular looking man. He called his mother and sister in turn as witnesses. The facts of the situation leading up to his assault emerged. He was visiting his sister's apartment when the sister's girlfriend came running over. She was in a nightgown, bleeding, and obviously very upset. She said that her father had been beating her up, so she fled the short distance in search of protection. Soon afterwards, the father appeared. He knocked at the door and the brother answered. The father demanded that his daughter return home. The brother said that she did not wish to go, and the father had no right beating her and no right insisting on her return. The father tried to push his way into the apartment and force his daughter to go with him. The young man blocked his attempt. In the struggle, he hit the father on the jaw. The father's jaw was broken. At that point, the father left.
It was evident that the story accurately represented the events leading up to the assault. In his decision, the judge ignored every detail in the story except the actual matter of the offense. "Did you or did you not," the judge intoned, "strike the complainant upon the jaw." "Yes your honour, but...." "Then I find you guilty as charged and will sentence you." The accused had never before had criminal charges against him. He staggered in disbelief at the swiftness with which his entire line of defense was swept away as irrelevant. The judge and the accused had different conceptions of justice.1
I tell both of these stories, not because I think they represent equal suffering, the brother's situation is far worse than mine, I tell them because I think we are naive about how justice operates unless we come face to face with the system ourselves. Perhaps naive is misleading. Gerald McHugh (1978) asserts that "most Christian thought on crime and punishment is decidedly medieval."2 It is time for us to wake up and seek justice. But first we need to consider what retards our compassion, reflection and action in response to crime and its victims. If we are not following the principles of scripture that characterized earlier Christianity, what should we do? If our attitudes show us up as co-operating with a system that hurts rather than heals, how can we live with integrity as Christians? First we must ask ourselves whose disciples we really are. Unless we recover Biblical sensibilities, we will not fare well in the judgement described in Matthew 25.32ff in which we are assessed according to the prescription: "Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me." Of course, someone might object, well that's easy; criminals are not members of God's family. By their actions they exclude themselves so that this prescription does not apply to them. However, the reasons we give to justify excluding criminals from the Christian family come more from culture than scripture.
I want to look at two ways justice has been understood, one which is grounded in an ancient Greek perspective and the other which is Hebrew/Christian. I use gender exclusive language because it is historically accurate to do so. I acknowledge that explaining why I use gender exclusive language does not make exclusion any less painful; exclusion is at the heart of all injustice. To Plato and Aristotle, in the context of ancient Greece, justice describes a situation in which each man recognizes he has his own work to do and does it well. Man's virtue is "the state of character which makes him a good man and makes him do his work well."3 Following this view, human beings are made up of three elements, namely: reason, desire and courage. Justice is served when each man keeps these three dimensions of himself in proper balance or harmony. In the satisfactory exercise of each man's work, which is based on a division of labour that benefits the whole society, the excellence of a man's work results in his own well-being and happiness and in the well being and happiness of the state. For Plato, the individual and the state are related to one another such that when each man does his own work well, and no one else's, the state is well off and just.
There is also a relationship between a man's work, his merit and his happiness. A man must discover his work. Society helps him to do this so he can do his proper work well. In doing his work, he will be happy. Others observe his merit, and confer on him his just desert which is given on the basis of how well he behaves with respect to his work in the public world. Since each man has his proper work to do, his merit and rewards, his just deserts are measured according to how well he does what he is meant to do.
Aristotle adds that, while it is good if this relationship between man and the state benefits and makes both happy, the well-being of the state is clearly more important than the well-being of any particular individual.4 This point of view undergirds utilitarian approaches to justice that were characteristic of Western society from the nineteenth to the mid-twentieth century. On this view, what is good for the greatest number of people is just. In utilitarianism the greatest good for the greatest number is not a simplistic notion but even in its best expressions, it does permit a few individuals to suffer for the good of the larger group. That is, utilitarianism encourages us to exclude those who disturb the social order so that the rest of us can be happy. When the Church is more concerned to blend with social order than to embrace the kingdom of God, when Church interests are synonymous with social interests and nothing more, the Church finds it simpler to exclude or punish anyone who disturbs the harmony of the social order, whether the disturber is a criminal or a prophet.
In terms of the concept, Aristotle divides justice into a number of categories; one is distributive justice, another is rectificatory, or remedial justice. Distributive justice works something like this. The term unjust means either lawless or unfair; just means either lawful or fair (in the sense of equitable). To be lawless is to break the law; to be unfair is to take advantage of another person. You take advantage of someone by taking more than your share. Taking more than your share can be accomplished in two ways: either the unfair person takes less of something that is bad, for example, he or she takes less of the hard work in a household (Aristotle would never give you that example!) or else an unfair person takes more of what is good, that is, takes more than his or her share of the food. What sets justice apart from other virtues to Aristotle is its completeness: it is exercised both toward ourselves and others. Aristotle notes something we have all observed: there are plenty of people who can behave uprightly in their own affairs, but are incapable of doing so in relation to someone else. To him, the worst people exercise evil towards themselves and their friends; the best people exercise virtue towards themselves and others. What makes an act unjust is that it is done for personal gain. Aristotle pursues the idea of personal gain by unpacking distributive justice.
Distributive justice is concerned with the distribution of social honour and money (or other valued assets). He describes distributive justice by explicating the proportional equality that is assumed to be at its core. He says that a just act involves four elements: two persons and two shares of something that is good. Distribution is just if the shares are divided according to the ratio of social honour between the persons. If people are not equal in terms of honour and money then the shares should not be the same; shares must be proportional to personal worth. He observes that it is when "equals have or are assigned unequal shares, or people who are not equal [have] equal shares, that quarrels and complaints break out."5 Of course, this requires that people who get less believe that they are the sort who deserve less. And they must be discouraged from thinking otherwise. In a clear case of a just act, the value of persons echoes the distribution of shares of valued assets. Aristotle gives us an example so that we will be sure about he means. He says "if an official strikes someone, it is wrong for him to be struck in return; and if someone strikes an official it is right for him not only to be struck in return but to be punished as well."6 This example applies both to remedial and distributive justice. I want to spell out Aristotle's example. Using a scale of 1 to 10, decide whether you think the following statements are just or unjust, with 10 out of 10 signifying "entirely just." In the first example, suppose you think that officials striking back and also punishing those who strike them, is reasonable and just, you would write down a number from 6 to 10. Evaluate the whole statement together; do not break it two parts and evaluate it separately. Here is Aristotle's statement using different people as examples.
1. If a husband strikes a wife, it is wrong for the husband to be struck in return; and if a wife strikes a husband it is right for the wife not only to be struck in return but to be punished as well.
2. If a teacher strikes a student, it is wrong for the teacher to be struck in return; and if a student strikes a teacher it is right for the student not only to be struck in return but to be punished as well.
3. If a guard strikes a prisoner, it is wrong for the guard to be struck in return; and if a prisoner strikes a guard it is right for the prisoner not only to be struck in return but to be punished as well.
What do you think? Was there a difference as you read through the examples? These examples helps us to see how we rank people according to their value. Do you think there is a connection between these statements and what was going on when Rodney King was beaten before a live audience and those who hurt him were acquitted, for a while, because they were police?
According to proportional equality, we judge equals justly by providing them with equal benefits and unequals, unequal benefits. If we judge that a guard is justified in striking a prisoner and also punishing the prisoner, it is because we judge the prisoner to be of unequal worth in comparison to the guard or less important than the maintenance of authority in the prison. That is, we (appallingly) rank prisoners as inferior to guards and to the prison structure itself. On this view, prisons are to keep prisoners out of our way and in place. We judge that prisoners are people who have not done their proper work or have not done it well. They are in prison to receive their just deserts; when guards strike them, prisoners are only getting what they deserve. On Aristotle's view, being just has to do with giving people what they deserve. According to proportional equality, we can treat inferiors differently to equals and still be just.
The second sense of justice, remedial justice, assumes a view of persons that continues to characterize our practices. Remedial justice rectifies differences caused by an injury. The parties are assumed to be equals at the outset, prior to the injury. Justice remedies the difference created by the injury through the action of the judge: the judge balances the harm resulting from an action by seeing to it that the injured man gets his fair share returned to him. This is done through forcing the offender to pay something back so that the original balance between the two, their equality, is restored. Suppose one man cuts off another man's ear. The offender must lose something of equal worth to compensate for the loss so the offended party gains back enough honour or money to recover the equality he had prior to the injury. In the Old Testament, we have a prescription concerning an eye for an eye which is a type of remedial justice. Rectifying the harm limits the offended party from taking more than what was lost: an eye for an eye, and no more. However, the Old Testament does not encourage us to turn a blind eye to other circumstances in the same way that the Greek view does. As McHugh observes: while Greek philosophers were probing into the abstract nature of virtue, Hebrew prophets were decrying the actual vice of moral evil precipitated by the natural inequality among men caused by differences in intellectual, physical and material endowment. They saw that these differences became the source of unruly power.7 Scripture assumes that all of us are sinners and fall short of the glory of God. No one is righteous on their own.
To Aristotle, it was possible for the strong to be good enough to be called virtuous. The best life is the life of contemplation which the good man engages in by himself. Scripture, on the other hand, does not assume that justice is only concerned with harm between equals and does not assume that the two parties are necessarily equal at the outset. The sociological reason for Aristotle to assume that initial equality exists between the two parties is that it was only injury to equals that had any social significance. In systems of honour and shame, only harm done to equals held importance; a man would only lose his good reputation if he harmed another man of equal social standing.8 In weighing acts of justice, it is only if we assume initial equality between the parties that we can isolate a specific act, separate that act from the rest of each person's life circumstances, and focus entirely on the arithmetic of losses and gains caused by the incident. This provides one way to make sense of the judge's action to ignore the evidence brought forward by the brother, his sister and his mother in the second story I told. While I cannot second guess the reasons for this particular judgement, the judge considered the breaking of the jaw alone as relevant to the case. He felt obliged only to make a judgement about that act. Assuming the brother and the girl's father were equals in this case meant that the judge justified turning a blind eye to all the events leading up to the act of one man hitting another. This permits the judge to ignore the harm to the girl and the help offered by the brother. Few of us would concur with the judge's view.
We might say to Aristotle, and this judge, that it is all very well for you fellows to have justice defined neatly between yourselves, but what of those who have no proper work because of poverty, skin colour, imprisonment, victimization, sex, religion or culture? What of those whose merit cannot be measured by how well they do their proper work because they have none? What of those whom society persuades that they deserve nothing because they are "born bad;" they are losers? Distributive and remedial justice may satisfy equals, but turning a blind eye to the life conditions of people is a source of injustice all on its own. If people are desperately unequal before an injury takes place, remedial justice cannot rectify harm because distributive justice is working against them. Proportional equality continues to define the ranking of persons in this century. While I was teaching ethics at the University of Calgary a number of years ago, an incident focused the point precisely. The news media reported an attack on a woman, in broad daylight, on a main highway in the city. The attackers intention was rape. A man who was passing by rescued her. Other people who saw the assault merely observed it and kept moving past. The rescuer reported to the media that his intervention into this womans experience changed his life and overturned many of the opinions he had grown up believing. He told the media that, as a young man, his family lived next door to a husband who frequently beat his wife and locked her outside the house. They would hear her cries and assumed that she must have done something to deserve his bad treatment. When he rescued the woman on a street in Calgary he came face to face with her victimization and innocence. Yet when he spoke with people who wanted to discuss the attack, he realized that many commonly thought that the woman must be getting what she deserved. This view is an echo of Aristotle. That is, the higher up people are in social rank, the more valuable they appear; and hence, the more licence they have to do as they please, and further, the more dangerous it is to upset them. To return to my own experience, I was surprised after the hearing, but I really shouldn't have been, that my lawyer chastised me for upsetting the judge. She was horrified. The implication was that the judge was not bound to be just if I was careless enough to upset him. I wondered then, and I still do, how easy it would have been for a poor person or "a loser" to upset the judge. In thinking about justice, we need to understand how power operates. I argue elsewhere that there is a close tie between social power and personal value.9
What is disastrous about the prison system in particular is that there is no protection for the worth of the prisoner. Prisoners are powerless. To go to prison is to lose one's humanity and be subject to abuse unimaginable from the outside. To be a victim is to lose personal power. Justice cannot be realized through processes that dehumanize people. Those who work on behalf of victims and prisoners are emphatically aware that justice is not served by a system that ranks the worth of persons along the lines of a social hierarchy that turns a blind eye to their social condition.
Sometimes we think turning a blind eye is just because it seems impartial and we believe justice should be impartial more than anything else. Yet when scripture talks about being impartial it requires us to have our eyes wide open to the differences between people. When scripture speaks about being impartial it instructs us not to be swayed by our fascination with position and privilege; it is not suggesting we be blind to differences that make some rich and some poor. The righteous see the widow's mite and know it is all she has. They value her gift for what it represents. Righteousness, the Hebrew concept of shalom, and the Greek concept of eirene, criticize the ranking of persons according to their value and provide principles that challenge distributive and remedial justice. Biblical concepts of justice, righteousness, shalom and eirene work together to provide a framework for thinking and acting justly. What do these words mean and imply and how do we bring them into human society to treat criminals and victims justly?
In both Greek and Hebraic/Christian frameworks justice is a complete concept in that it is exercised towards ourselves and towards others. I am aware of the religious debate over personal salvation versus social justice, but the concept of righteousness includes both dimensions. To emphasize one at the expense of the other is to violate what righteousness means. When we stress one aspect at the expense of the other, our reasons may have more to do with money, power and resentment than anything theological. What is most strikingly different between Biblical and Greek views is the role that God plays. God is source, exemplar, sustainer, and judge. Since God is outside the human system and is neither deluded by it nor enslaved to reproduce it, God's assessments are remarkably different from the assessments we make of each other. In the Greek system, justice is played out in an entirely human world of exchanges between equals. Aristotle thinks the Greek gods have little need for, or interest in, justice. Greek justice is an abstract idea and supports a hierarchy of worth based on gender, rank and wealth (i.e., a system of honour and shame). It is quite a different thing to consider justice in the presence of a God from whom there is no escape and who holds us accountable for the way we treat other people. In making this comparison, I am not claiming the ancient Biblical world was somehow more just in practice than the ancient Greek world. Rather I am saying that different ideas about justice were operating. The interaction between God and scripture has left us with principles and standards for living justly that are capable of producing more justice in the world than we now typically see.
In scripture, the concepts of righteousness, shalom and eirene promote justice that has its eyes wide open to the grace of God and the situation of others. Righteousness refers to making things right, or straight. The righteous are bound to make themselves right or straight with God and other people. Righteousness refers to right standing and the consequent right behaviour within a community. The best life is found in the Christian community which contains all sorts of people who vary in intellectual and social skill; this is quite unlike the group of equals that concern societies grounded on honour and shame. When God judges with equity and without partiality, God is not following the prescriptions of Greek society in which value is measured according to a socially constructed hierarchy of value. God is no respecter of persons, in this sense. The value God attributes to persons seems to be plentiful and generous, rather than calculated and scarce.
Righteousness produces an equality of a particular and unique kind. Following the teachings of Christ, Paul explains that no one seeking to be righteous by the works of the law can be justified in God's sight because everyone is a sinner and has fallen short of God's righteous standard. Therefore the righteousness of God comes as a gift no one can merit. Since God's standard of acceptability is perfection and no one measures up, grace is exceedingly fair and equitable. It is the same for all. But grace must be received as a gift. Those of Aristotle's persuasion want to have merit based on accomplishments of some kind so that earthly rewards can be justly distributed according to personal merit. Part of the rationale for distributive justice is to assign people different social and material rewards and to legitimate that distribution. The trouble with grace as a gift, sociologically, is that it is hard to maintain hierarchies of social honour if we are equally worthy in God's sight and if God's view of us is what matters. How do we justly divide things up preferentially if we are all God's children? It seems as if the Church must borrow Greek and Roman concepts of justice when it wants to establish and protect the ranking of persons according to social value based on money, honour and power.
Biblical righteousness is not otherworldly; it does not draw us away from the world to prefer the heavenly above the earthly so much as it focuses our attention on this world and makes us accountable for how we treat others while we are here because we are going there. Righteousness recognizes that, left to themselves, powerful people will act in their own interests. Righteousness situates us securely in the generosity of God's care. The righteous are characterized by steadfast love and faithfulness because they have seen the salvation of the Lord. They speak the truth and practice mercy. The righteous are wise and nurture others in wisdom. When life goes well for the righteous, the whole city flourishes. The righteous know the rights of the poor and protect the alien, the widow and the orphan. The righteous are on the side of the oppressed and the prisoner, just as God is. The righteous live in peace, quietness and trust and yet respond courageously to the needy and are not frightened away from doing justice even if the whole city were to stand for injustice and set its face against them. To be righteous is to live in peace but not necessarily to live without conflict. The righteous face and reconcile conflict by promoting spiritual and material well-being in all those present. We have remarkable examples of this willingness and ability to resolve conflict in the New Testament. The resolution of conflict over circumcision among the Gentiles and over the Greek widows' complaint that their needs were not being met, are examples from the book of Acts. To be in the presence of the righteous is to be nourished and made well; it is to be included, taken seriously and blessed. The righteous accept that, if needs be, it is better to suffer than to cause suffering since Jesus revokes the rule about an eye for an eye and realizes in us a higher calling. The righteous act in such a way that God's grace is made evident and available to others so that the righteous are not merely sentimental; they are purveyors of peace.
I want to say more about the Christian conviction that we are all sinners. Crime is a social construct.10 Christians must free themselves from worldly patterns in order to debate and discuss law rather than to so slavishly follow unjust laws or even worse, to use unjust laws for personal gain. Since crime is socially constituted and changes over time, we need to distinguish crime from sin and restore the sense of being a human family under God that is united by our propensity to sin. Ted Peters11 provides a very helpful revision of the medieval understanding of the seven deadly sins, which were: pride, envy, anger, covetousness, sadness, gluttony and lust. He reconfigures our concept, to help us understand sin in our culture and time. As he sees them, the seven deadly sins (so called because they lead to death) are anxiety, unfaith, pride, concupiscence, self-justification, cruelty and blasphemy. Anxiety is the state of all of us because sin estranges us from God. Cut off from God, we feel anxious. Anxiety is not sin in itself, but it readies us for sin. Anxiety is the fear or worry that we will lose our being; that we will be unnoticed, misunderstood, not taken seriously, forgotten or replaced. Anxiety tempts us to erect illusions of immortality, to lie to ourselves, and to steal strength, glory, power or life from others. We actively move to the sin of unfaith when we carry out these thefts. Pride amounts to acting as though we are God so that our own ego moves front and centre, making itself our source of life. The proud person conceals anxiety by smothering it under a blanket of self-control and exerting power over others. The key characteristic of pride is not selfishness but the absence of empathy. Pride blocks sympathetic understanding, preventing us from sensing the pain and struggles that other people suffer. Pride paves the way for anger and hatred. Concupiscence is a medieval word; it refers to the unquenchable fire of wanting and wanting. Concupiscence leads us to self-justification by persuading us to take what is God's alone, that is, goodness. We sin in self-justification through wanting to be seen to be good to such an extent that we are willing to lie and scapegoat others. In self-justification we reject God's grace because we are entirely focused on our own adequacy, our own goodness. The sixth sin is cruelty. First we scapegoat, then we become willing to inflict emotional or physical pain on others. Inflicting pain becomes a desirable and acceptable policy to us. The seventh sin is blasphemy. This is very specific: it is the misuse of divine symbols so as to prevent the communication of God's grace. God becomes identified with evil. Fascism is blasphemous because religious language is used to inspire hatred and harm. The prison system is blasphemous when it uses the language of reform to conceal dehumanization.
We are all sinners. Many of us commit crime. Some of us become criminals and some victims. The differences between the criminal and me are not grounded in my innocence or goodness. It is my view that I am someone who can make social systems work for me. Because I am well loved and generally supported in my personal projects, I have the courage to try to accomplish them. I said at the beginning that I thought I could stand toe to toe with the judge that said no to me. I may not have won. What really separates me from those abused by criminality is that I believe I might win. The tragedy of injustice is that those who most easily get caught and held in an unjust system are those persuaded by life that there is no point in even trying to make the social world respond to them with humane recognition. That is the perversity of injustice that must be undone. Hope must flourish at the heart of justice.