By Ted Grimsrud

People think there are circumstances where 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.—Leo Tolstoy (Resurrection, 450)

These words from Tolstoy set my agenda for this book.  Do circumstances indeed exist where some human beings are authorized to treat other human beings in unloving ways?  Tolstoy asserts as a fact that they do not—“mutual love is the fundamental law of human life.”  Given that we live in a world where in fact often people do not treat other human beings lovingly, Tolstoy’s “law” must be, at the least, shown to be true.  We cannot take it for granted.

Testing Tolstoy’s Law

So, what we will do in these pages is test Tolstoy’s law, treating it more as a hypothesis that must be examined than as settled fact.  May we find clear evidence of the positive side of Tolstoy’s law—that human beings thrive best under the conditions of mutual love?  And, more to the point for this book, may we find clear evidence of the negative side of Tolstoy’s law—that when human beings treat others without love something fundamental about everyone’s humanity is diminished?

What do we mean by “handling human beings without love”?  We can have no doubt that such (mis)handling is all too common.  Let me suggest that one clear expression of this “handling without love” is the use of violence.  Though we notoriously have a difficult time defining “violence” with genuine precision, most of us may surely agree that harmfulness lies at the heart of our understanding of violence.  An act of violence, by definition, causes harm.

Hopefully, then, we may agree in closely linking together “handling without love” with “causing harm” with “acting violently.”  And if Tolstoy is correct, we will suspect that violence is not only incompatible with love, it also violates the “fundamental law of human life” and hence is most unlikely ever to be redemptive or whole-making.

Violence Needs Justification

Now, again, let’s remember that we will be testing the validity of Tolstoy’s law, not taking it as a settled fact.  Nonetheless, even if one is inclined to doubt Tolstoy on this law, I believe we should all agree (should we be reflective) that most (if not all) inter-human violence in our world does require justification.  We treat violence as inherently problematic (requiring justification), even if we believe it may be necessary or appropriate.

We do act as if Tolstoy’s law is on some level operative.  Even if we don’t think of violence as absolutely forbidden under all circumstances (which is indeed how Tolstoy himself applied this law), we at least see violence as behavior that requires an explanation of why may be acceptable, all things considered.

Think about acts of violence that most people in our society believe are acceptable.  One type of acceptable violence is self-defense—easily justified (for most of us) as obviously necessary for our own survival.  However, many acts that may acceptable for self-defense are seen as inherently wrong if done as acts of aggression.

Three other categories of commonly accepted violence include warfare, punishment of convicted criminals (including the ultimate act of violence, the death penalty), and the use of corporal punishment on children.  All three areas follow a somewhat parallel type of logic, the logic of “justifiable retribution” (i.e., using punishment to respond to wrongdoing).

First, a person commits some kind of wrongdoing.  This violation requires a response that repays the pain caused by the wrongdoing with pain inflicted on the wrongdoer (what we mean by “punishment”).  We justify the harm caused the wrongdoer because of the harm they first caused.  The “natural” benefit of the doubt against violence (reflecting the validity of Tolstoy’s law) is overcome by the need to exact retribution for wrongdoing.

The reasons for the need to exact retribution may vary greatly depending on the circumstances (certainly warfare and corporal punishment differ profoundly).  One reason might be the need to maintain social order and not let wrongdoers “get away” with violating that order.  Another reason might be to offer some sort of satisfaction for victims of wrongdoers.  Another reason might be to help bring about positive change in the lives of wrongdoers.

Another area of commonality among these three types of generally acceptable violence includes the need to limit the extent of the retributive (or corrective) violence so that no more harm is caused than is necessary to achieve the purpose of this violence.  As well, we may also say that the violence be limited to “authorized” personnel (hence, war declared and executed by legitimate governments, capital punishment only by the state after due process [rather than personal retaliation], and corporal punishment only by parents or other approved authority figures).

Interestingly, James Gilligan, formerly a prison psychiatrist in Massachusetts, argues in his book Violence: Reflections on a National Epidemic that “unsanctioned” violence also almost always follows some kind of logic of justification.  Even mass murderers and other perpetrators of horrendous acts of violence generally follow fairly explicit and often carefully thought through justifications for their obviously unjustifiable acts.  Gilligan believes often the justifications relate to needs such people feel to gain power, to retaliate for perceived wrongs, or regain a lost sense of honor.

For our purposes, the point we may draw from Gilligan’s argument is that even for extraordinarily violent people (and often, tragically, such people act violently time after time) violence remains in some sense problematic, requiring some kind of (however twisted) justification.

Problematic Consequences for Violence

Focusing on the socially acceptable types of violence and returning to Tolstoy’s law, we may suspect that even when violence seems clearly justifiable in terms of accepted criteria, we still should expect that violence will have problematic consequences.  If it is simply a law of human existence that each person must be treated with love, then violating that law will likely bring with it negative consequences.

Most of us surely would agree that in each of the three areas I have mentioned—warfare, criminal justice, punishment of children—we do have plentiful examples of extraordinarily negative consequences to the use of violence, negative consequences that outweigh whatever positives may ensue.  We surely would not all agree on whether negative consequences always result from the use of violence.  However, if we recognize that at least sometimes even sanctioned violence leads to serious problems we will want carefully to rethink the ease with which we accept the notion that violence can and should easily be justified.

In this book, we will consider just one type of sanctioned violence—partly to test Tolstoy’s law, partly to help us reflect on how indeed we might best work at restoring wholeness in the face of brokenness in our world in general, and partly to consider this particular issue as important in its own right.  Our issue is the punishment of convicted criminals—and the problematic consequences that have resulted from this type of sanctioned violence.

Given the ever-growing presence of what some critics now call “the prison-industrial complex” in American culture, this issue deserves our thoughtful attention in its own right.  However, I will suggest that the treatment of convicted criminals in our society provides an important and unsettling window into our core theological convictions.  And, more hopefully, reflecting on criminal justice issues theologically has promise to help us deepen our awareness of the healing message of the gospel of Jesus and its relevance for our social ethics.

An Enormous Crisis

In the United States right now, we face a crisis of enormous proportions.  In his courageous call for a large-scale re-evaluation of our criminal justice practices, United States Senator Jim Webb of Virginia began his March 29, 2009 cover article in Parade Magazine by stating “America’s criminal justice system has deteriorated to the point that it is a national disgrace.”  We’ll look more closely at this crisis in the next chapter.  Let’s just assume right now the possible validity of Webb’s comments.

We are pushed by this crisis (one among many related to violating Tolstoy’s law) to ask a basic question.  How do we best respond to violations of human dignity in ways that serve our society’s wellbeing?  Such violations do happen; people are treated violently; crimes occur.  And such crimes require response.  Society cannot allow such brokenness to fester and spiral into more brokenness.  However, is violence a valid means to break this spiral of brokenness?

We must ask, echoing Walter Wink’s opening words in his classic study, Transforming the Powers, how might we respond to evil in ways that reduce rather than expand the evil?  Or, echoing Friedrich Nietzsche, how might we successfully resist monsters without becoming monsters ourselves?

The evil we must respond to is the evil of violent crime (that is, one of the evils we must respond to is violent crime).  The standard response in our society involves punishment.  We (through our representatives, the state) give back pain to repay the pain the offender gave the victim.  This pain for pain by definition involves (albeit “justifiable”) violence—causing harm to the harm doer.

We may call this dynamic of repaying violent crime with violent punishment “retributive justice.”  Our culture grounds retributive justice in philosophical (and, actually, theological) assumptions about the nature of our moral universe.  We at least implicitly tend to see the moral universe as involving a kind of balancing act.  We may characterize this “balance” thus: when the balance of the moral universe is tilted due to violent crime, another act of violence must occur to restore the balance.

Traditionally, Christians in the West have seen the moral universe to be reflecting God’s character.  In Western theology going back at least to the early Middle Ages, God’s holiness has been seen as the core element of God’s character insofar as it relates to public morality.  God has established and revealed to humanity basic laws that tell us what God expects from us.  These laws reflect God’s holiness, holiness that requires perfect obedience of God’s creatures.  When human beings violate these laws, God reacts with anger at God’s violated holiness.  God moves into a punitive mode that God’s basic character as a holy God requires.  We will return to this theme in chapter three below.  Here we simply need to note that beliefs about how God’s holiness leads to God’s punitive response to violations of God’s law have greatly shaped and continue to shape how many people in our society envision responding to crime.  Hence, our current criminal justice system that to its core operates in terms of retributive justice.

With Tolstoy’s law in mind, we must ask whether we have evidence that our punishment-oriented criminal justice system (that does indeed accept that there are circumstances when people may be treated without love) actually does foster social wellbeing.  Further, we must ask whether the theological grounding (explicitly stated and implicitly assumed) for such a criminal justice system is theologically sound.

When we reflect on the moral acceptability of punitive violence, we touch on our views of ultimate reality, of the moral nature of the universe, and of our deepest sense of right and wrong.  Even if we are not couching these issues in overtly theological terms, they do nonetheless have to do with theology.  Christian theology has profoundly shaped western culture to the extend that we must pay attention to theology if we are to understand our culture’s values.  And, if we understand theology to be the process of reflecting on our deepest values (not simply about explicit references to God), we will recognize that our thoughts about justice are theological thoughts.

Healing Justice (And Theology)

My intended audience for this book is first of all people who understand themselves to be Christians, so I do not feel the need to develop a detailed argument justifying discussing the issue of the morality of violence in theological terms.

As well, part of my agenda in this book is to encourage Christians to take responsibility for seeking social healing in our society.  If, as I will show in chapter two, we are experiencing a great deal of social disease in our society right now because of our criminal justice practices, and if, as I will show in chapter three, many of the underlying forces that exacerbate this disease are rooted in theological convictions, we need to approach the issue of healing our theology as part of the process of cultivating social healing.

I will argue later in the book for an approach that I will call “restorative justice”—both as a means of healing our practice of justice and our theology.  Restorative justice within our society’s criminal justice system goes back to the 1970s, though this approach is grounded in ancient traditions, including various religious traditions.  My concern will mostly be with the Christian tradition, but I recognize the ways various other traditions perhaps have an even stronger claim than Christianity for encouraging a spirituality of restorative justice.

This is what I will be doing in the chapters to come.  As I have already mentioned, chapters two and three will discuss the present crises in American criminal justice practices and theological dynamics that have helped create these crises.

Then I will suggest that we may actually go back to the Bible and read it, with our issues in mind, as offering inspiration for restorative rather than retributive justice.  The first step in this reading will be to propose that we best read the Bible as a single story (with many tangents) and give an overview of the central theme of this biblical story—what I will call “God’s healing strategy.”

We will then look closely at several of places in the Bible that most directly offer guidance for reading the Bible as encouraging restorative rather than retributive justice.  The prophets of the Old Testament addressed justice and injustice in ancient Israel in light of their understanding of the core concerns of Israel’s law.  The prophet who most transparently writes about justice is the prophet Amos.  Jesus himself serves as the core orienting point for understanding God’s healing strategy, and hence for understanding the biblical view of justice as fundamentally restorative rather than retributive.  The Apostle Paul and the book of Revelation may also be read as advocates for understanding justice restoratively rather than retributive.

Now, obviously these claims for the messages given in the Bible will be contested, so we will need fairly carefully to consider the bases for reading what have often been seen as retributive texts (e.g., Amos and his message of judgment, Paul and his affirmation of the state’s sword-bearing function, and Revelation with its polarizing good/evil narrative the recounts massive blood-letting).

Then we will focus directly on several of the ways this recent movement called “restorative justice” has worked in the criminal justice arena at alternatives to punitive practices.

To conclude the book, we will reflect more broadly on how our discussion of “healing justice” might contribute to theories and practices that contribute to approaches to dealing with issues of evil and wrong-doing that indeed do have hope of succeeding at resisting evil in ways that do not add to the evil.

We do, after all, live in a world where violations do happen.  To simply advocate denying the needs victims have for vindication and the needs societies have for order and security in the name of an ideal of “healing” and “wholeness” would likely only increase brokenness and alienation.  So, in light of the discussion of justice in this book, we will conclude with some thoughts about how to find genuine justice that offers possibilities for wholeness for all people concerned.

[Chapter 2: Our Current Crisis]