Whose Justice?

On September 14th, U.S. House Majority Whip Tom DeLay insisted, "When the President draws the sword of American justice, he needs to do it with all of us standing with him."

After I got over a momentary image of George W. Bush in justice drag -- wearing a long white gown, blindfolded, a scale in one hand, and waving a sword madly about with the other, I thought I had better brush up on that word "justice". Everybody wants it, it seems, but everybody seems to mean different things by it.

In "Habits of the Heart" (Univ of Calif. Pr., c1985) Robert N. Bellah et al. speak of Justice this way:

"As we use it, justice has three senses: (1) procedural justice, which is a matter of the fairness of the rules under which society operates and disputes are adjudicated; (2) distributive justice, which is a matter of the fairness of the society's system of rewards, of its distribution of goods and opportunities; (3) substantive justice, which is a matter of the institutional order of society as a whole and its justice or fairness."

These have, I think, been pretty standard definitions within the Christian (and other) traditions. The U.S. [Roman] Catholic Bishops gave similar (although not strictly identical) definitions in their "Economic Justice for All; Pastoral Letter on Catholic Social Teaching and the U.S. Economy" (1986).

But, I have found in my reading and conversations, hardly anybody in the U.S. thinks of justice in these terms. What most people hear when we say "justice" is actually something else: what is properly called "retributive justice". Retributive justice has been defined as determining who committed a crime and inflicting appropriate pain on them -- as deserved punishment and, it is hoped, a deterrent to others who might commit similar crimes.

(There is another, and I think, more Christian concept increasingly being proposed, that of "Restorative Justice," as exemplified in South Africa's Truth and Reconciliation process. But that, alas, is off the radar screen for most in the U.S.)

And if the vision of most people in the U.S. is limited to "retributive justice", there are also factors in our history -- our "tribal mores" -- that color it further. Embedded in our history -- and, I think, in much of what has followed the September 11th atrocities -- are relics of what has been called "Backcountry Justice" in the rural South and the "Rough Justice" of the mid-Western and Western frontiers.

Cowboy"Backcountry Justice" held that when wrong was done to someone, he must punish the wrongdoer himself by an act of retribution that restored order in the world. It contained, it has been noted, "an exceptionally strong sense of self-sovereignty." This kind of justice was swift and violent. Its victims were flogged and sometimes killed without any attention to due process, or even to the evidence. Missing was the first of Robert Bellah's types of justice, "Procedural Justice".

An attitude of "We don't need any evidence. We know he's guilty", coupled with a penchant for ignoring international institutions and courts in favor of "an exceptionally strong sense of self-sovereignty" vis a vis the rest of the world continues to affect our actions following the events of September 11th.

The "Rough Justice" of the frontier had many affinities with "Backcountry Justice". Certain crimes were held to be especially deserving of swift and violent retaliation because of the brutal methods used or the relative defenselessness of the victim. There was, of course, a racial component: alleged sexual assaults of white women by those of another color or murders of white Anglo-Saxons by members of racial or ethnic minorities were held to deserve an especially harsh response. At the core of it was an openly expressed contempt for the slow, careful "due process" of procedural justice. Preferred was a violent collective response by a united community, acting as one in punishing those it deemed "outlaws". To stand aside from, or even to question, this assumed unanimity was to be branded an outlaw oneself.

There is still a deep strain of this kind of thinking in the United States -- far more, I suspect, than there is in our neighbor to the north, for instance -- and war, as usual, appeals to the worst in us. As Christians, I think, we will need to be very careful not to play into it.

We will need to resist the constant pressures to abandon our critical faculties in favor of "making it unanimous". As the Archbishop of Kenya told the U.S. House of Bishops, "We should keep a critical and strategic distance so that we can praise our political leaders when they do what is just and true before God and criticize them fearlessly whatever the cost when they depart from justice, which God requires."

And we will need to be careful to say what we mean and mean what we say. Slogans like "No Peace without Justice" too often may be heard as "Punish the guilty and then we'll have peace", and the popular one "Justice, not Revenge" is, I think, virtually meaningless. Absolutely everyone agrees with it -- people just mean different things by "justice". (I like Bishop Borsch's use of the word "justness" as less likely to be misunderstood by those whose horizons are limited to retributive justice.)

I would suspect that as people of faith we should, at the very least, take a stand on the necessity for procedural justice -- the fairness of the rules under which disputes are adjudicated -- in any attempt to "bring the culprits to justice". We should insist that those rules be applied evenly, across the board, to everybody -- including anyone in high places in the United States or its allies -- who has committed similar and worse atrocities anywhere in the world.

We should continue to insist that distributive justice -- the fairness of the distribution of goods and opportunities -- is essential on a global basis if there is to be even a start at peace or the security of a world without terror.

And finally, we will need to keep on educating and organizing for substantive justice -- the justice or fairness of the institutional order of society as a whole -- keeping the Kingdom of God as our model and standard, and working together with those of other faiths or none who are striving for economic and political institutions "more in keeping with the Mind of Christ."

Ted Mellor
October 2001

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