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. Continue reading