Ted Grimsrud—Peace Essays #E.5
[Co-authored with Howard Zehr; published in Journal of Offender Rehabilitation. 35.3/4 (Fall 2002), 259-285.]
“The whole trouble,” Leo Tolstoy wrote about the criminal justice system, “is that people think there are circumstances when one may deal with human beings without love, but no such circumstances ever exist. Human beings cannot be handled without love. It cannot be otherwise, because mutual love is the fundamental law of human life.”
Our criminal justice system certainly is troubled by tendencies to treat some people (offenders and victims) without love; the consequences are costly. From a Christian perspective, and simply for the sake of social wellbeing in our society, we need to challenge those tendencies.
This paper will address three issues: (1) On what bases do people think they can deal with offenders without love? That is, what views of God, ultimate reality, and justice justify unloving (retributive) approaches to criminal justice? (2) Is it possible to construct an understanding of God, ultimate reality, and justice, based on the founding texts of the Christian tradition (i.e., the Bible), which supports Tolstoy’s assertion about the fundamental law of life being love? (3) Is it possible in “real life” to approach criminal justice issues from the point of view of Tolstoy’s assertion that love is foundational?
Concepts of God and retributive justice: A summary and critique
Despite the widespread occurrence of inter-human violence throughout most of recorded history, few people would deny that most human beings have an inclination to avoid violence toward other human beings. In human experience we usually need some overriding reason to go against this inclination. That is, to act violently toward, especially to kill, other human beings, is serious business, undertaken because some other value, commitment or instinct overrides the inclination not to be violent.
Punishment involves, by definition, the intentional infliction of pain and the use of coercion and thus must be seen as a form of violence. Punishment by the state, then, is morally problematic as it involves the state doing things that are normally considered morally and socially unacceptable. The problematic nature of punishment has given rise to a huge variety of justifications for delivering such pain.
In the criminal justice tradition of the Western world, the overriding justifications given for violently punishing offenders, even to the point of death, have and continue to be tied to a certain understanding of ultimate reality. In this view, ultimate reality requires retributive justice when fundamental natural or divine laws are violated. Such “retributive justice” is seen to restore the moral balance.
Given the religious roots of Western culture, this understanding is to a large extent rooted in a particular view of God as ultimate reality: retribution is needed to “satisfy” the need God has that violations be paid for with pain. When someone commits a wrong, it is assumed, the central question of justice is “What does s/he deserve?” and the normative answer is pain.
So in the area of criminal justice, the issue of punishment, i.e. of authorized human beings inflicting pain (including death-dealing pain), on other human beings is a theological as well as a philosophical and practical issue. In saying that violence is a theological issue, we are using “theology” in a broad sense to refer to beliefs about ultimate reality, foundational beliefs about the nature of the universe. We are using “God” as the common human symbol for ultimate reality, whether this understanding of ultimate reality posits a personal deity or not.
Punishment is an issue having to do with how human beings understand the world they live in, the values by which they shape their lives. The concept of retribution or punishment as justice is an issue shaped decisively by beliefs about God and God’s character (or, in non-religious language, beliefs about ultimate reality and the character of ultimate reality).
Western culture has explicitly theological roots dating back to the “Christianizing” of the Roman Empire which began in the fourth century with the first “Christian” emperor, Constantine, and given powerful theological grounding in the work of Augustine a century later. This process continued as western concepts of justice were decisively shaped during the Middle Ages through an interaction between Christian theology and newly-emerging concepts of law. This interaction deeply influenced western culture as a whole and helped to reinforce a retributive view of justice.
Part of the theology underlying retributive justice, that we will summarize in very broad strokes, speaks to how God was (and is) understood. There are some key aspects of the view of God generally characteristic of medieval Europe which shaped (and were also shaped by) the emerging punitive practices of criminal justice and which continue to be foundational in present-day practices of retributive justice.
A crucial consequence of this view of God is how it provides the basis for understanding God to desire violent punishment. God’s wish for violent punishment provides a crucial impetus for the overriding of our instinct not to kill or in other ways act violently toward other human beings.
Retributive theology sees the first, and most basic, attribute of God as holiness, or, we could say, purity, or perfect righteousness. God’s holiness is such that God simply cannot countenance any kind of sin. Sin is unholiness, impurity, unrighteousness. God can have nothing to do with such blemishes. In fact, if God has direct contact with sin, God must destroy it immediately. Everything about God and God’s actions must be understood as ultimately deriving from this holiness.
From this perspective, human beings know what sin is because God has provided us laws, or rules, to follow. These laws have been revealed in part through the special revelation from God given in the Bible but also through the natural awareness people have in their own hearts of what is right and wrong. Human societies construct legal structures that, to a greater or lesser degree, depending on the particular society, reflect God’s laws. When human beings sin, it is because they diverge from God’s laws. Since the laws come from God, the sins are ultimately against God – and they hence directly violate God’s holiness. This makes God angry and punitive. The only way holiness can be satisfied is through just punishment.
God’s essential nature, then, is essentially inflexible. God cannot simply choose to forgive violations of his law. God can not respond to each case in a unique way given the unique circumstances of each sin. God is unable to act with unilateral mercy and compassion. God, rather, is constrained by holiness – again, the most foundational characteristic of God. Simply to forgive would violate that holiness and leave it unsatisfied.
Compassion without satisfaction is simply not possible for God. Since God’s justice is based the principle of holiness, God’s justice allows nothing but punishment (i.e. the giving of pain for the sake of giving pain) as recompense for sin. Otherwise, the imbalance of a universe where God’s rules have been violated can never be rectified. People must get what they deserve.
Ultimate reality, then, is in this view based on an inflexible principle of holiness. God may be understood as, in essence, a personified unchanging law of holiness. Deep down, reality is impersonal and unmerciful and the universe is seen in this view as an impersonal balance. “Justice” is most fundamentally concerned with maintaining this balance. If the balance is upset, justice requires recompense to restore the balance-payment to satisfy the requirements of the balance. This payment is made through punishment, pain for pain.
When the offense is serious enough, the only payment acceptable to justice is death – hence the moral validity of capital punishment. The human instinct not to kill is overridden by the requirements of justice. God wills that humans kill other humans under these circumstances because the most important value is God’s justice.
In this theological framework, the doctrine of the atonement enters the picture here. Due to the extremity of the offenses of human beings against God’s law, the only way God can relate to human beings is if there is death from the human side to restore the balance. God cannot relate to human beings simply based on love and compassion; God’s justice, i.e. holiness, trumps God’s love. God can relate only if God’s holiness is satisfied.
As it turns out, the only way this can happen is through the enormity of the death of God’s own Son, Jesus, whose righteousness is so powerful that it can balance out the unrighteousness of all of humanity. Jesus’ atoning death provides a way for God to relate to repentant human beings. Human beings, when they confess their own hopeless sinfulness, may claim Jesus as their savior from the righteous anger of God, anger based on human violation of God’s laws. As a consequence, salvation itself does not go counter to the basic nature of the universe as founded on impersonal holiness. Salvation happens only because that holiness is satisfied through the ultimate act of human violence – the sacrificial death of Jesus Christ. The basic nature of the universe does not change, and hence the pattern of restoring the balance by punishment when violations of God’s law occur remains intact.
This theology has infused the social, political and cultural life of the West in very fundamental ways going back not just to the medieval period but into antiquity. Timothy Gorringe makes a strong case for the atonement theology of Anselm of Canterbury (c. 1033-1109) providing a crucial link in applying this view of God and ultimate reality to the practice of punitive criminal justice However, surely the roots of such an application of these theological themes go much further back, to the infusion of Greek philosophy into Christian thought and the extraordinarily influential writings of Augustine of Hippo.
While recognizing these ancient antecedents, we will focus on the Middle Ages in sketching the impact of retributive theology on the criminal justice practices of the West. In the early Middle Ages, the church, as it struggled with the state for dominance of European society, found it helpful to utilize the law of the later Roman empire as its instrument for solidifying its authority. It merged its theology with the newly-rediscovered legal system to create canon law. Secular authorities, in their turn, followed suit.
The theology provided a notion of God’s impersonal holiness and retributive response to violations of that holiness. The Roman legal philosophy was also centered on impersonal principles. Instead of being based on custom and history, law in this perspective stood alone.
Roman law assumed a central authority, thus providing a basis for “legitimate” initiation of action by a “neutral” centralized dispenser of justice. In the medieval worldview, this centralized authority (church or state) was God’s direct agent.
Roman law was written law, based on principles that were independent of specific customs (“transcendent,” to use theological language). As embraced by the medieval church in its canon law, it had an accompanying method for testing and developing law (i.e., scholasticism). Roman law therefore could not only be systematized and expanded but could be studied and taught transnationally by professionals. This universal character helps explain its appeal and almost immediate spread to universities throughout most of Western Europe.
From the base of Roman law, the church built the elaborate structure of canon law, the first modern legal system. This was a revolutionary development. It provided the papacy with an important weapon in its struggle for supremacy both within the church and in its relationship to secular political authorities.
By providing for prosecution by a central authority, it established a basis for attacking both heresy and clerical abuse within the church. The most extreme expression of this new approach was the Inquisition in which representatives of the pope ferreted out heretics and tortured them both to obtain evidence and to settle accounts.
No longer was the individual the primary victim. In the Inquisition, it was a whole moral order that was the victim, and the central authority was its guardian. Wrongs were no longer simple harms requiring redress. They were sins requiring retribution. God’s holiness understood in terms of retributive theology, necessitates punishment, carried out by the human agents of God’s will.
These retributive practices actually diverged greatly from the approach of the earliest Christians. In the early church wrongs were seen as against people. In Matthew 18, for instance, wrongdoers are to make it right to the victim, then the obligation is loosened in heaven. But in the new medieval understanding, wrongs came to be seen as against God, against moral order. The wrong was seen to be against the sovereign, the overall authority, and that figure was a legalistic, punishing figure. God took the place of the victim, and salvation became appeasing an angry God. God’s punishment was portrayed as so awful that our all attention is on saving the sinner from punishment, ignoring the obligation to the victim. In this theology – as in the emerging legal system – the focus is on dealing with the offender.
Justice became a matter of applying rules, establishing guilt, and fixing penalties- without reference to needs of the victim or the relationship between victim and offender. Canon law and the parallel theology that developed began to identify crime as a collective wrong against a moral or metaphysical order. Crime was a sin, not just against a person but against God, against God’s laws, and it was the church’s business to purge the world of this transgression. From this it was a short step to the assumption that the social order is willed by God, that crime is also a sin against this social order. The church (and later the state) must therefore enforce that order. Increasingly, focus centered on punishment by established authorities as a way of doing justice.
By the end of the sixteenth century, the cornerstones of state justice were in place in Europe, and they drew deeply from the underpinnings of retributive theology. New legal codes in France, Germany, and England enlarged the public dimensions of certain offenses and gave to the state a larger role. Criminal codes began to specify wrongs and to emphasize punishment. Some of these punishments were overwhelmingly severe, including torture and death.
Enlightenment thought and post-Enlightenment practice increased the tendency to define offenses in terms of lawbreaking rather than actual harms. To the extent that harms were important, emphasis was increasingly upon public rather than private dimensions. If the state represented the will and interests of the public, it was easier to justify defining the state as a victim and giving up to the state a monopoly on intervention. Most importantly, the Enlightenment provided new objectivity in the practice of punishment.
Enlightenment and French Revolutionary thinkers did not question the idea that when wrongs occur, pain should be administered by the state. Instead, they offered new justifications for state-initiated punishment. They instituted more rational guidelines for administering pain. And they introduced new mechanisms for applying punishment.
The primary instrument for applying pain came to be the prison. The reasons for the introduction of imprisonment as a criminal sanction during this era are many. However, part of the attraction of prison was that one could grade terms according to the offense. Prisons made it possible to calibrate punishments in units of time, providing an appearance of rationality and even science in the application of pain.
In short, our current “retributive” model of justice gained ascendancy through this legal revolution starting around the eleventh century, but which was not fully victorious in many places until at least the nineteenth century. Through this process, crime came to be defined as against the state, justice became a monopoly of the state, punishment became normative and victims were pushed out. But it was not a simple matter of theology shaping emerging criminal law or vice versa. The influence went both ways, with law and theology shaping each other.
Developing penal theory, based partly on Roman law, helped reinforce the punitive theme in theology – e.g., a satisfaction theory of atonement, which reinforced the idea of payment or suffering to make satisfaction for sins. Biblical interpretation was biased in that the Latin translation of the New Testament caused it to be read through the lens of Latin law. As Gil Baillie has noted, Christ’s death was intended to end retribution but this reinterpretation, including “satisfaction theology,” worked toward the opposite – desensitizing us to, even justifying, judicial violence.
Retributive theology, emphasizing legalism and punishment, deeply influenced western culture through rituals, hymns, symbols. An image “of judicial murder, the cross, bestrode Western culture from the eleventh to the eighteeenth century,” with huge impact on the western psyche. It entered the “structures of affect” of western Europe and “in doing so, …pumped retributivism into the legal bloodstream, reinforcing the retributive tendencies of the law.”
The result, at minimum, was an obsession with retributive themes in the Bible. A kind of historical short-circuit occurred in which certain concepts were taken from their biblical context, interpreted through the lens of Roman law, then used to interpret the biblical text. The result was obsession with the retributive themes of the Bible and neglect of the restorative ones – a basic theology of a retributive God who desires violence.
This view is embedded in Western criminal justice system through our modern paradigm of “retributive justice,” which might be characterized like this:
(1) Crime is understood primarily as a violation of the law (unchanging, impersonal), and the state is the victim.
(2) Offenders must get what they deserve: The aim of justice is to establish blame and administer pain to satisfy the demands of the moral balance in which the violation is countered by the punishment.
(3) The process of justice finds expression as a conflict between adversaries in which the offender is pitted against state rules and intentions outweigh outcomes and one side wins while the other side loses.
This paradigm of retributive justice which dominates Western criminal justice is a recipe for alienation, as is readily apparent today. By making the “satisfaction” of impersonal justice (“God’s holiness”) the focus of our response to criminal activity, the personal human beings involved—victims, offenders, community members—rarely find wholeness. Moreover, the larger community’s suffering often only increases.
Instead of the healing of the brokenness caused by the offense, we usually find ourselves with an increasing spiral of brokenness. Many victims speak of being victimized again by the impersonal criminal justice system. Offenders, often alienated people already, become more deeply alienated by the punitive practices and person-destroying experiences of prisons – which are most certainly not systems built upon anything resembling Tolstoy’s law of love.
A crucial step in breaking free from the destructive dynamics of violence responding to violence is to recognize that the notion of ultimate reality (based on beliefs about God) that underlies the retributive justice paradigm is a human construct. Gorringe’s “archaeology” of the impact of Anselm’s theology provides powerful evidence for such a recognition.
As Gordon Kaufman writes, all theology, in the broad sense of our views of ultimate reality, is a human construct: “All understandings of the world and of human existence are human imaginative constructions, grown up in a particular historical stream to provide orientation in life for those living in that history. But at any given time it is always an open question whether the conceptions and values and perspectives inherited from the past remain suitable for orienting human existence in the new present: this is a question to be investigated, never a position which can simply be taken for granted.”
The notions of God and ultimate reality that underlie the retributive paradigm outlined above are not set in concrete. They are the result of human reflection and human application. If these constructs contribute to brokenness instead of healing, furthering the spiral of violence instead of fostering genuine peace, they need to be deconstructed and replaced.
Ironically, given the roots of our predicament in Christian theology, if we would return to Christianity’s founding documents, the writings in the Bible, we might well discover the bases for a very different understanding of justice, ultimate reality, and God. This alternative reading of the Bible provides the basis for constructing a new understanding of justice, one which is increasingly coming to be called “restorative” justice, in contrast to “retributive” justice.
To put it another way, the source of our problem might actually provide a way to overcome the problem. Dutch law professor Herman Bianchi has argued that we should apply “homeopathic theory” to our situation. It will take a dose of what made us sick to cure us. Since an interpretation of theology got us into this “illness” in the West, he argues that it will take a dose of theology to make us free of it. .
In what follows, we will summarize some of biblical themes which undergird a non-retributive theology. Then we will briefly discuss present-day attempts to express this alternative theology in the realm of criminal justice practice.
The law of love and restorative justice: An alternative reading of biblical materials
To read the Bible itself with a sensitivity to issues related to restorative justice rather than through the lens of retributivist theology reveals a remarkably different portrayal of God and justice. From start to finish, we find in the Bible a “logic of salvation” fundamentally counter to salvation based on satisfying an impersonal principle of retributive justice.
The Bible’s “logic of salvation” time after time reveals a God whose mercy is unilateral, whose compassion takes precedence over wrath (Hosea 11:9). The act of creation itself can be understood thus – God bringing peace out of chaos. The story of Noah and the Flood concludes with God simply deciding to act henceforth with mercy and not destruction (Genesis 9:8-17). Abraham and Sarah are called to form a people meant to bless all the families of the earth (Genesis 12:1-3) based totally on God’s unilateral gift to them of an unexpected child (“Sarah was barren,” Genesis 11:30).
Abraham and Sarah’s descendents are given new, miraculous life – liberation from slavery in Egypt – simply as a gift from God. The law of Moses came in the same way – simply as a gift from God. Much later, God spoke similarly through Hosea in promising to continue to love the rebellious children of Israel (“I am God and not mortal, the Holy One in your midst and I will not come in wrath,” Hosea 11:9). After Israel’s fall and while in exile, more such words spoke of God’s persevering love and unilateral mercy (Isaiah 40–55).
The story of Jesus continues this account of God’s dynamic, responsive, unilateral saving mercy. According to the Apostle Paul, the work of God to save even God’s enemies (Romans five) is an expression of God’s justice (Romans 3:21). That is, God’s justice finds expression in unilateral, life-giving mercy – mercy that heals, which restores broken relationships, which has absolutely nothing to do with punishment or salvation. Paul’s understanding of God’s justice as personal and restorative (not impersonal and retributive as articulated by later Christian theology) fully coheres with earlier portrayals of God’s justice in the Hebrew Bible.
The Book of Amos, set in the mid-eighth century, BCE, gives us a focused treatment of the theme of justice. “Justice” (Hebrew: mishpat and sedeqah; Greek: dikaisune) is a common term in the Bible. A careful examination of its usage reveals an understanding quite different from impersonal, retributive, “English-speaking” justice.
The Book of Amos contains perhaps the most concentrated treatment of the theme of justice in the Bible. The prophet Amos confronts the people of Israel for their treatment of weak and marginalized people in their midst: “You…who oppress the poor, who crush the needy” (4:1). The Israelites “trample the head of the poor into the dust of the earth, and push the afflicted out of the way” (2:6). They have corrupted the local legal system which, instead of protecting weak people, actually makes their plight worse.
Israel is in jeopardy here due to its practices of oppression and exploitation and due to its active religiosity that only makes God more unhappy with the people. “Why do you want the day of the Lord? It is darkness, not light” (5:18).
Israel’s only hope is to reverse the directions of its social practices. “I hate, I despise your festivals… Take away from me the noise of your songs; I will not listen to the melody of your harps. But let justice roll down like waters, and righteousness like an ever-flowing stream” (5:21, 23-24). The salvation for Israel is justice. But it is not justice as an abstract principle, as an impersonal balancing of the universe’s scales. It is God’s justice—the farthest thing from punishment. The Book of Amos does speak of impending judgment should Israel not turn to the ways of justice. However, the judgment is not called “justice”. “Justice” has to do with restoration of wholeness, not with retribution.
Amos presents justice as tied up inextricably with life. Do justice and live, Amos asserts; do injustice and die. Justice is not an abstract principle but rather a life-force. An unjust society will die; it cannot help but collapse of its own weight.
The goal justice seeks is life for everyone in the community. Because life is for everyone, justice pays particular attention to the people who are being denied life. Justice provides for access by all to the communal “good life.” None can justly prosper at the expense of others, or even in the light of the poverty and need of others. Justice, for Amos, establishes relationships, it meets needs, it corrects wrongs. Justice is concrete, practical, and historical. It is tied to specific acts and people. It is not abstract nor ahistorical.
In Amos, as elsewhere in the Bible, the ultimate goal of God’s justice is redemption (cf. the vision of the healing of Israel which concludes the book of Amos [9:11-15]). Even the judgment God brings on Israel is for that end: it is intended to correct Israel’s self-destructive injustice. The threats, warnings, and judgment of God are not for the sake of punishment as an end in itself. They are not a matter of retribution, of repaying rebellious Israel an “eye for an eye”. Rather, the threats and warnings offer hope of salvation, of transformation. But if Israel does not respond, God’s respect for Israel’s free-will will result in God allowing its collapse as a nation-state. As we well know, this is precisely what happened: Israel played power-politics to the end and succumbed to the superior power of Assyria.
The overall biblical teaching on justice parallels what we find in Amos. We may summarize the biblical perspective with the following four points:
(1) Justice is for the sake of life. God’s justice in the Old Testament is not primarily retribution but salvation, not primarily punitive but corrective. The justice of God is saving power, God’s fidelity to the role as the Lord of the covenant. Hosea 2:19 makes this point clearly: “I will take you for my wife forever; I will take you for my wife in righteousness and in justice, in steadfast love, and in mercy.” Other representative Old Testament texts include the following: Ezekiel 34:16; Psalm 25:9; Isaiah 1:27; and Jeremiah 9:24.
The biblical God created the earth and its inhabitants for harmonious relationships and continually acts, even in the midst of human rebellion, to effect those relationships. “The Jewish and early Christian understanding of God’s justice put the primary emphasis on the divine initiative, on God’s readiness to do for his human creatures what they could not do for themselves, on God’s readiness to ‘go the second mile’ and more.”
In the Old Testament justice is not primarily a legal concept; rather tends to merge with concepts such as “steadfast love,” “compassion,” “kindness,” and “salvation”. Justice has ultimately to do with enhancing life. In that way we imitate our life-enhancing, loving Creator.
In the New Testament, the writings of the Apostle Paul, particularly the Letter to the Romans, make similar points. In Romans, Paul states that the justice of God has been revealed (apart from the law) in the saving work of Jesus Christ (Romans 3). That is, God’s justice is God’s compassionate love which effects salvation.
(2) Justice is part of the created order. The Old Testament connects justice and life as part of its creation theology. Old Testament theology confessed “creation” to be an act of the covenant-making God of Israel. Therefore, the basic character of creation harmonizes with the values of the covenant love, justice, peace, compassion—that which sustains and nourishes life. The Old Testament allows for no disjunction between the creator God and the covenant-making God. In fact creation was God’s first covenant-making act. Thus covenant values are part of the very fabric of creation. This means that human life has meaning, purpose, and destiny. Human life originated as an expression of God’s covenant-love. So all human action that is in harmony with that love has meaning and is part of the basic meaning of creation—and is thereby “just”.
The creation of humankind in the image of this God means that all people need relationships – with each other and with God. The purpose of human activity is to facilitate these relationships. Since all people, simply by virtue of being people, image God and thus have dignity and value, discrimination and disregard of any human life can never be justified. Injustice severs relationships. Justice seeks to establish and/or restore relationships.
God’s will has to do with all parts of creation. Nothing is autonomous from that will. The Old Testament challenges people of faith to carry out the creator’s will in all spheres of human existence. Ultimately, the Old Testament makes no distinction between the order of creation and the order of redemption. The creator-God and the redeemer-God are one and the same. Faithfulness to the “creation mandate” equals living lives of love. The heart of God’s character is steadfast love, which for God means desiring the good of all people. This includes God’s enemies and especially social outcasts. God’s love provides the model for God’s followers.
(3) Justice is not soft on evil but rather seeks to destroy evil. However, this justice is rooted in God’s love for all humans. God’s love for enemies means that God hates that which evil does to humankind and works to heal its effects. Evil ends when the cycle of evil fighting evil is broken. The Old Testament model for this is Isaiah’s suffering servant—for Christians the precursor to Jesus—who did not retaliate but accepted all that the powers of evil could do and conquered them. This is the ultimate model for biblical justice. God destroys evil, ultimately not through coercive force but through suffering love. This biblical theme symbolically comes to its completion in the book of Revelation, where the Lamb, Jesus Christ, wins the final battle with the powers of evil through his cross and resurrection (cf, Rev.19:11-21).
God’s love works to set right that which has been corrupted. This is justice. One way to characterize justice is to say that justice is how love is expressed in the face of evil. Love expressed in the face of evil acts to stop the evil and to heal its effects. It is redemptive, salvific.
God’s justice creates life and acts to sustain and restore life. Human justice, in the Old Testament sense, would seem truly to be justice only when it also acts to sustain and restore life. Since biblical justice seeks to make things better, justice is not designed to maintain the status quo. Indeed, its intent is to shake up the status quo, to improve, to move toward shalom.
(4) God’s justice is especially concerned with the most vulnerable members of society. The biblical teaching ends up emphasizing the poor and needy because in their oppression they were being excluded from community life and from the shalom God wills for everyone. This destroys community and ends up lessening the well-being of each person in the community.
Jeremiah identifies doing justice to the poor and needy with “knowing” God (22:13-16). He represents God as stating that those who “understand and know me” are those who recognize that “I am Lord; I act with steadfast love, justice, and righteousness in the earth, for in these things I delight” (Jer. 9:24). This is true for God; it is likewise God’s expectation for people.
Expressing love toward one’s fellow human is the inescapable condition of having communion with God. “Sow for yourselves justice, reap steadfast love,…for it is time to seek the Lord” (Hosea 10:12). This becomes the call to conversion: “Return to your God, hold fast to love and justice, and wait continually for your God” (Hos. 12:6). This communal justice was not to be for the Israelites’ own sake alone. The purpose for justice within Israel was ultimately worldwide justice. Even in the story of Israel’s initial election in Genesis 18, a major reason given for it is to bring about “justice and right” for all humankind.
Biblical teaching redefines justice in ways that help us do justice in a largely unjust world. As Millard Lind writes, “biblical justice speaks to the world’s problems of justice, and it speaks so radically (to the ‘root’ of the matter) that it changes the definition of justice.” In changing the definition of justice, the biblical perspective changes the definition of the ultimate character of God.
The Bible emphatically identifies God’s love with God’s justice. This inextricable connection guards against rationalizing the treatment of some people as objects instead of as human beings, all in the name of “justice”. Such “justice” becomes a dehumanizing power-struggle with winners and losers. And because losers are so seldom content with being losers, the battle never ends.
Holding love and justice together also guards against thinking of justice as an abstraction, separate from its function as a relationship-building, life-sustaining force. The concern for justice is people, much more than “fairness”, “liberty”, or “entitlements”. Biblical justice focuses on right relationships, not right rules.
In this way of thinking, justice is primarily corrective or restorative. Justice seeks reconciliation and reparation. Injustice must be opposed and resisted – but only in ways that hold open the possibility of reconciliation. What happens to the offenders matters, too, if justice is the goal. Corrective justice rules out death-dealing acts, such as capital punishment, as tools of justice. This understanding of biblical justice (and the biblical God) places a high priority on restoring relationships and social wholeness in the face of brokenness and alienation (e.g., crime). Hence, we might call it restorative justice.
We may illustrate the contrast between biblical, restorative justice and retributive justice as follows:
- Rule-focused (break law)
- Focus on infliction of pain
- Rewards based on just deserts
- Separate from mercy
- Seek to maintain status quo
- Central actors: state vs. individual
- State (or God) as victim
- Goal is offender paying debt to society (God); victim is ignored
Restorative, biblical justice
- People-focused (cause harm)
- Focus on making right
- Rewards based on need
- Based on mercy and love
- Transforms status quo
- Central actors: entire community
- People (shalom/peace) as victims
- Goal is restoration of relationships, healing for all parties
Restorative justice is personal, relational, social, and dynamic. It stands in stark contrast with the Western retributive justice that characterizes our criminal justice practices. The contrast may be said, by some, to be so great that restorative justice is essentially irrelevant to the “real world” we now live in.
We propose, to the contrary, that restorative justice offers tremendous possibilities for “healing” even in the brokenness and alienation of today’s criminal justice world. Hundreds of programs in many parts of the world demonstrate that restorative justice is not only relevant but essential. Without doubt, healing is needed.
Putting restorative justice into practice
“Human beings cannot be handled without love,” Tolstoy wrote, and yet our concept and practice of criminal justice have been built upon the opposite. We have argued above that the Christian scriptures support Tolstoy’s assumption that relationships are fundamental. However, a misconstruction of God’s nature, formed in part through an unfortunate symbiotic interaction between law and theology during a formative period of western culture, has caused us not only to ignore but also to pervert this understanding into a retributive concept of justice. It is this retributive understanding that underpins the unprecedented rate of punishment in today’s world, providing conceptual justification for the “corrections-industrial complex” or industry that is part of its driving force.
This concept of justice is not only morally questionable—it is counterproductive as well. James Gilligan, former head psychiatrist for the Massachusetts Department of Corrections, notes that many offenses emerge out injustice and victimization that offenders themselves have experienced or perceive themselves to have experienced. “The attempt to achieve justice and maintain justice, or to undo or prevent injustice, is the only and only universal cause of violence.”
Gilligan continues: “What is conventionally called ‘crime’ is the kind of violence that the legal system calls illegal, and ‘punishment’ is the kind that it calls legal. But the motives and the goals that underlie both are identical – they both aim to attain justice or revenge for past injuries and injustices. Crime and punishment are conventionally spoken of as if they were opposites, yet both are committed in the name of morality and justice, and both use violence as the means by which to attain those ends. So not only are their ends identical, so are their means.”
What would a concept of justice look like if it were based on love – that is, on respect and concern for the people involved, on a commitment to respond constructively? Could such a relational or restorative approach to justice not only be articulated but actually implemented?
During the past twenty-five years, a growing movement has sought to do just this. Eduardo Barajas, Jr., a program specialist for the National Institute of Corrections, has characterized it like this: “A revolution is occurring in criminal justice. A quiet, grassroots, seemingly unobtrusive, but truly revolutionary movement is changing the nature, the very fabric of our work.” He argues that it extends beyond most reforms in the history of criminal justice: “What is occurring now is more than innovative, it is truly inventive, … a ‘paradigm shift’.”
The immediate source of this “restorative justice” movement may be traced back to two Mennonite practitioners in Ontario, Canada. Frustrated with existent criminal justice practices, trying to put into practice, their religious beliefs, seeking to be practical about peacemaking, they conducted a series of “victim-offender reconciliation” encounters between two juvenile offenders and the numerous people these young men had victimized in a drunken spree. This led to the implementation of various forms of victim-offender mediation or reconciliation throughout North America, Europe and elsewhere and to the development of restorative justice theory.
From of that tiny source was born a stream that is truly international in scope. Nothing comes from nowhere, though, and of course this restorative justice stream has many much deeper sources; indeed, its exact origin is obscure. It can be traced to a variety of religious traditions. During the past several decades it has been fed by the conflict resolution movement as well as the seemingly contradictory movements for victim rights and alternatives to prison. Feminist theory has provided an important awareness of how the patriarchal nature of our structures, including the justice system, but has also enriched the stream with its emphasis on an ethic of relationship.
The stream is fed in important ways from a variety of traditional values, practices, and customs. Indeed, two of the most promising forms of restorative justice today – Family Group Conferences and Circle Sentencing, come directly from aboriginal or indigenous values adapted to the realities of modern legal systems.
In contrast to the “retributive” paradigm of justice outlined earlier in this paper, the concept of restorative justice underlying these approaches might be summarized like this:
(1) Crime is primarily a violation of, or harm to, people and relationships.
(2) Violations create obligations. The aim of justice is to identify needs and obligations so that things can be “made right” to the extent possible.
(3) The process of justice should, to the extent possible, involve victims, offenders and community members in an effort to mutually identify needs, obligations and solutions.
The restorative justice concept can be framed in a variety of ways, but two ideas are fundamental: restorative justice is harm-focused and it promotes the engagement of an enlarged set of stakeholders. Most restorative justice can be seen as following from these two concepts.
Restorative justice views crime first of all as harm done to people and communities. Our legal system, with its focus on rules and laws, often loses sight of this reality, that crime is essentially causing harm; consequently, it makes victims at best a secondary concern of justice. A harm focus, however, implies a central concern for victims’ needs and roles. Restorative justice, then, begins with a concern for victims and how to meet their needs, for repairing the harm as much as possible.
A focus on harm also implies an emphasis on offender accountability and responsibility – in concrete, not abstract, terms. Too often we have thought of accountability as punishment, that is, pain administered to offenders for they pain have caused. In reality, this has very little to do with actual accountability.
Little in the justice process encourages offenders to understand the consequences of their actions or to empathize with victims. On the contrary, the adversarial game requires offenders to look out for themselves. Offenders are discouraged from acknowledging their responsibility and are given little opportunity to act on this responsibility in concrete ways. The “neutralizing strategies”—the stereotypes and rationalizations that offenders use to distance themselves from the people they hurt—are never challenged.
However, if crime is essentially about harm, accountability means being encouraged to understand that harm, to begin to comprehend the consequences of one’s behavior. Moreover, it means taking responsibility to make things right in so far as possible, both concretely and symbolically.
The principle of engagement suggests that the primary parties affected by crime – victims, offenders, members of the community – are given significant roles in the justice process. They need to be given information about each other and to be involved in deciding what justice in this case requires. In some cases, this may mean actual dialogue between these parties. In others it may involve indirect exchange or the use of surrogates. In any case, engagement implies involvement of an enlarged circle of stakeholders as compared to the traditional justice process.
In highly simplistic form, the three central questions of the retributive justice paradigm might be characterized like this: “What laws have been broken? Who ‘done’ it? What do they deserve? The comparable questions for a restorative approach then might be these: “Who has been hurt? What are their needs? Whose obligations are they?”
“What does the Lord require?” asks the Hebrew prophet Micah, and begins the answer like this: “To do justice….” But what does justice require? The latter question is central to restorative justice. What does justice require for victims? For offenders? For communities?
Out of the traumas of victims’ experiences come many needs. Some of these have to be met by victims themselves and their intimates. But some of their needs are best addressed by the larger society, especially the justice process.
Victims badly need what might be called somewhat ambiguously “an experience of justice.” This has many dimensions. Often it is assumed that vengeance is part of this need but various studies suggest that this is not necessarily so. The need for vengeance often may mostly be simply the result of justice denied.
The experience of justice seems to include public assurance that what happened to the victim was wrong, that it was unfair, that it was undeserved. Victims need to know that something is being done to make sure that the offense does not happen again. Often they feel the need for some repayment of losses, in part because of the statement of responsibility that is implied. So restitution and apologies from an offender can play an important role in the experience of justice.
Victims also need answers; in fact, crime victims often rate the need for answers above needs for compensation. Why me? What could I have done differently? What kind of person did this and why? These are just a few of the questions that haunt victims. Without answers, it can be very difficult to restore a sense of order and therefore to heal.
Another area is sometimes termed “truth-telling”—opportunities to tell their stories and to vent their feelings, often repeatedly, to people that matter: to friends, to law enforcement people, perhaps even to those who caused this pain. Only by expressing their anger and by repeatedly telling their stories can many victims integrate this terrible experience into their own stories, their own identities.
Also important is the need for empowerment. In the crime, an offender has taken power over victims’ lives – not only of their body and or property during the incident itself, but over their subsequent emotions, dreams and reality. Indeed, many victims find that, at least for awhile, the offense and the offender are in control of their psyche. That is profoundly unnerving. Without an experience of justice and healing, this too can last a lifetime.
Offenders, we have argued above, need to be held accountable, but in ways that encourage empathy and responsibility. However, they certainly have other needs as well. Instead of isolation, offenders need encouragement to be reintegrated – or integrated – into the community. They also need opportunities personal transformation. This implies focus on developing competencies (instead of the usual focus on deficiencies). It requires that they have an opportunity to have their own needs – including the harms and sense of victimization that may have led to their actions – addressed.
Although retributive justice is done in the name of the “community” (which actually means the state), in actuality the actual human community of those affected by the crime is left out of this process and its needs addressed only abstractly, if at all. Fears and stereotypes are heightened rather than addressed. People are encouraged to view things in simple dichotomies – them and us, guilty or innocent – rather than appreciate the rich nuances of real-life people and situations. Worst of all, perhaps, when the community is left out of the justice process, important opportunities for growth and community building are missed.
Judge Barry Stuart, an early developer of Sentencing Circles, notes that when conflicts are processed right, they provide the means to build relationships between people and within communities; take this away, and you take away a fundamental building block of community and of crime prevention. Communities have needs well as responsibilities that must be addressed.
To address these needs, a diverse set of practices has emerged in various communities. Most work in a cooperative relationship with the existing justice system, receiving referrals from it. Many are designed to provide alternative sentencing options or alternatives to arrest or prosecution. Others, such as those that work with severe violence, may be primarily designed to assist the healing of victims and offenders, with minimal impact on legal outcomes. Most, however, involve some form of victim-offender conferencing. That is, they involve an opportunity is provided for a facilitated dialogue between victim and offender, often with a written restitution agreement as part of the outcome.
Three examples of restorative-oriented alternatives which have emerged include the following: (1) the Victim Offender Reconciliation Program (VORP); (2) Family Group Conferences (FGC); and (3) Sentencing Circles (SC).
(1) Victim Offender Reconciliation Program. In North America, the leading form of victim-offender conferencing, at least until recently, has been called the Victim Offender Reconciliation Program (VORP) or Victim Offender Mediation (VOM).
In its “classic” form, it is operated in cooperation with the courts but often housed in separate non-profit organizations. Upon referral of a case by the court or probation service, trained volunteers separately contact victim and offender to explore what happened and determine their willingness to proceed. If they agree, victim and offender are brought together in a meeting facilitated by the volunteer mediator who serves as a neutral third-party. In this meeting, the facts of the offense are fully explored, feelings are expressed, and a written restitution contract worked out. This contract and a brief report then go back to the court or referring agency. If it is to become part of a sentence, it must receive final approval of the court, then becomes a condition of probation.
In its original form, VORP predominately handled property offenses such as burglary. Increasingly, however, programs are being designed to handle cases of violence, including offenses such as rape and homicide. Offenses like this, of course, require special precautions and procedures and so VORP is today taking many forms.
(2) Family Group Conferences. Recently, new forms of conferencing are emerging, new applications are being tried, and new lessons are being learned as a result of two approaches originally rooted in indigenous traditions.
Family Group Conferences (FGC) emerged in New Zealand (and soon in Australia) in the late 1980s as a response, in part, to the concerns and traditions of the indigenous Maori population. The western-style juvenile justice system was widely recognized to be working poorly and many Maori argued that it was antithetical to their traditions; it was oriented toward punishment rather than solutions, was imposed rather than negotiated, and left family and community out of the process.
In the new juvenile system adopted in 1989, all juvenile cases with the exception of a few very violent crimes are diverted from police or court into FGCs. New Zealand Judge Fred McElrea has called it the first truly restorative approach to be institutionalized within a western legal framework.
Instead of court hearings, youth justice coordinators facilitate conferences including victims and offenders, though families of the offender are also an essential ingredient. Not only do families help to provide accountability and support but advocates argue that it empowers the family as well. Caregivers involved with the family may be invited and a youth advocate —a special attorney—is included to look out for the legal concerns of the offender. Victims too bring family or supporters. Moreover, the police (who are the prosecutors in this legal system) take part in the meeting.
The meetings are not only large but include parties with divergent interests and perspectives. This group is expected to come up with a recommendation for the entire outcome of the case, not just restitution, and they must do this by a consensus of the group! Even more startling, they actually manage to do so in most cases. Family Group Conferences are working well enough that many judges and other practitioners have called for their adaptation to the adult system in New Zealand and pilot projects are under way there.
(3) Sentencing Circles. Sentencing Circles (SC) have developed as an effort to take seriously the traditions and concerns of indigenous peoples. Until recently they have operated primarily in Native Canadian or “First Nation” communities, but in Minnesota and other places they are being applied to a variety of settings, including inner-city neighborhoods and the workplace.
Sentencing Circles take a variety of forms. Usually, though, they work in conjunction with the formal legal process to provide forums for developing sentencing plans while at the same time addressing community-wide causes and problems. SCs bring together offenders, victims (or their representatives), support groups and interested community people to discuss what happened, why it happened, and what should be done about it. Discussions are apparently wide-ranging and aim toward a full airing of facts and feelings and consensus about solutions.
While the “punishment” or sentence of the offender is worked out here, primary emphasis is on healing of victim, offender, and (significantly) community. According to Stuart, the principal value of the approach is the impact on communities: “In reinforcing and building a sense of community, Circle Sentencing improve[s] the capacity of communities to heal individuals and families and ultimately to prevent crime.” These emerging practices imply a radically different approach to justice for offenders – one that emphasizes an accountability that Austrialian criminologist John Braithwaite calls active rather than passive responsibility.
Critics point out that if restorative justice is to be taken seriously, it will need to expand its analysis of offender needs to encompass an understanding of rehabilitation. Drawing upon the “What Works” tradition in rehabilitation, we suggest the following as essential building blocks of restorative or relational rehabilitation:
1. Restorative rehabilitation is victim-focused. Treatments and therapies are not conducted in isolation from understanding of impacts on, responsibilities to, and concern for, victims.
2. Treatment is not viewed as an entitlement—as may happen in the current model—but rather as part of accountability to victims and the community and a form of social exchange.
3. Treatment is contextualized, focusing upon integration and the creation or strengthening of social bonds rather than isolation.
4. Interventions are tailored to the profiles and personal characteristics of individual offenders. For example, levels of service are matched to the level of risk; intensive services to low-risk offenders are often not only ineffective but often backfire. High anxiety offenders do not respond well to confrontation, and offenders with below-average intellectual abilities do not respond well to cognitive skills programs.
5. Interventions are designed to identify and change the criminogenic needs of offenders and, except for individuals not suited to it, are rooted in behavioral or cognitive-behavioral treatment models.
Tolstoy’s assertion suggests that justice needs to be redefined in new terms. Criminologists Richard Quinney and John Wildeman, set the context like this: “From its earliest beginnings…the primary focus of criminology has been on retribution, punishment, and vengeance in the cause of an existing social order…rather than a criminology of peace, justice and liberation.…If crime is violent and wreaks violence on our fellows and our social relations, then the effort to understand and control crime must be violent and repressive.”
However, such an approach only intensifies the spiral of violence leading to greater violence. What is needed is something that breaks the cycle of violence. Quinney and Wildeman suggest that finally peacemaking school of criminology is beginning to emerge.
We have argued in this paper that such a peacemaking approach to criminal justice is indeed needed. This peacemaking approach must take seriously (and vigorously critique) the philosophical and theological roots to retributive criminology. However, we are suggesting that the deepest roots of Western theology, found in the Bible, are indeed fully compatible with new, peacemaking approaches to criminal justice.
Tolstoy would be pleased.
 Quoted in Timothy Gorringe, God’s Just Vengeance: Crime, Violence, and the Rhetoric of Salvation (New York: Cambridge University Press, 1996), 266.
 Howard Zehr, Changing Lenses: A New Focus for Crime and Justice, second edition (Scottdale, PA: Herald Press, 1995).
 On the symbol “God”, see Gordon Kaufman, In Face of Mystery: A Constructive Theology (Cambridge, MA: Harvard University Press, 1993).
 Gorringe, God’s Just Vengeance, 85-125; cf. also Anselm, “Why Did God Become Human?” in Brian Evans and G. R. Evens, eds. Anselm of Canterbury: The Major Works (New York: Oxford University Press, 1998), 260-356.
 See Henry Paolucci, ed., The Political Writings of St. Augustine (Chicago: Henry Regnary, 1962, especially sections I and IV.
 See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983); Herman Bianchi, Justice as Sanctuary: Toward a New System of Crime Control (Bloomington, IN: Indiana University Press, 1994); and Zehr, Changing Lenses.
 Bianchi, Justice as Sanctuary, 16-17; cf. also Bernard Hamilton, The Medieval Inquisition (New York: Holmes and Meier Publishers, 1981).
 Julian Pleasants, “Religion That Restores Victims,” New Theology Review 9.3 (1996), 41-63.
 Gorringe, God’s Just Vengeance, 22.
 Gil Baillie, Violence Unveiled: Humanity at the Crossroads (New York: Crossroad, 1995).
 Gorringe, God’s Just Vengeance, 224.
 Gorringe, God’s Just Vengeance.
 Kaufman, In Face of Mystery, 43.
 Bianchi, Justice as Sanctuary, 2.
 For a more detailed presentation of these ideas, see Ted Grimsrud, God’s Healing Strategy: In Introduction to the Main Themes of the Bible (Telford, PA: Pandora Press US, 2000).
 Cf. Albrecht Dihle, Greek and Christian Concepts of Justice (Berkeley, CA: The Center for Hermeneutical Studies, 1974) and George Parkin Grant, English-Speaking Justice (Sackville, New Brunswick: Mt. Allison University Press, 1974).
 The next several paragraphs summarize Ted Grimsrud, “Healing Justice: The Prophet Amos and a ‘New’ Theology of Justice,” in Ted Grimsrud and Loren Johns, eds., Peace and Justice Shall Embrace: Power and Theopolitics in the Bible (Telford, PA: Pandora Press US, 1999), 64-85.
 James D. G. Dunn, The Justice of God: A Fresh Look at the Old Doctrine of Justification by Faith (Grand Rapids, MI: Eerdmans, 1993), 35.
 Millard C. Lind, Monotheism, Power, Justice: Collected Old Testament Essays (Elkhart, IN: Institute of Mennonite Studies, 1990), 95.
 Lind, Monotheism, 89-90.
 See Ted Grimsrud, “Peace Theology and the Justice of God in the Book of Revelation,” in Willard M. Swartley, ed., Essays on Peace Theology and Witness (Elkhart, IN: The Institute of Mennonite Studies, 1988), 135-153.
 See Nicholas Wolterstorff, Until Justice and Peace Embrace (Grand Rapids, MI: Eerdmans, 1983), 69-72 and Perry Yoder, Shalom: The Bible’s Word for Salvation, Justice, and Peace (Newton, KS: Faith and Life Press, 1987), 27-37.
 Lind, Monotheism, 95.
 See Nils Christie, Crime Control as Industry: Toward Gulags, Western Style (New York: Routledge, 1994) and Eric Schlosser, “The Prison-Industrial Complex” Atlantic Monthly 282.6(June, 1998), 51-77.
 James Gilligan, Violence: Reflections on a National Epidemic (New York: Vintage, 1997), 12.
 Gilligan, Violence, 18-19.
 Ron Claassen, “Prerequisites for Reconciliation” in VORP Volunteer Handbook (Akron, PA: Mennonite Central Committee, 1990), 10-11.
 What follows draws upon the following writings by Howard Zehr: Changing Lenses; “Restorative Justice: The Concept” Corrections Today (December 1997), 68-70; and “Justice as Restoration, Justice as Respect,” The Justice Professional 11 (1998), 71-87.
 Eduardo Barajas, “Moving Toward Community Justice,” in Community Justice: Striving for Safe, Secure, and Just Communities,” (Washington, DC: National Institute of Corrections, 1996), 1-7.
 Barry Stuart, “Alternative Dispute Resolution in Action in Canada: Community Justice Circles,” unpublished paper (Whitehorse, Yukon: Yukon Territorial Court, n.d.).
 See Harry Mica, “Victim Offender Mediation: International Perspectives on Theory, Research, and Practice,” Mediation Quarterly 12 (1995).
 F.W.M. McElrea, “Restorative Justice in Practice,” in Jonathan Burnside and Nicola Baker, eds., Relational Justice: Repairing the Breach (Winchester, U.K.: Waterside Press, 1994).
 Rupert Ross, Returning to the Teachings: Exploring Aboriginal Justice (Toronto: Penguin Books, 1996).
 Stuart, “Alternative Dispute Resolution.”
 John Braithwaite, “Principles of Restorative Justice,” plenary presentation at the International Conference on Restorative Justice for Juveniles (Ft. Lauderdale, FL, November, 1998). See also John Braithwaite and Philip Petit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford, U.K.: Clarendon Press, 1990) and John Braithwaite, Crime, Shame, and Reintegration (Cambridge, U.K.: Cambridge University Press, 1990).
 See Sharon Levrant, Francis Cullen, Betsy Fulton, and John Woziak, “Reconsidering Restorative Justice: The Corruption of Benevolence Revisited?” Crime and Delinquency 45.1 (1999), 3-27; Gordon Bazemore, “Restorative Justice and Earned Redemption,” American Behavioral Scientist 41.6 (1998), 768-813; and Anne H. Crowe, “Restorative Justice and Offender Rehabilitation: A Meeting of Minds” Perspectives: A Journal of the American Probation and Parole Association 22.3 (1998), 28-40.
 Richard Quinney and John Wildeman, The Problem of Crime: A Peace and Social Justice Perspective (Mountain View, CA: Mayfield Publishing Company, 1991), 40-41.