TO SEEK JUSTICE OR FAIRNESS?
July 31, 2017
“That’s not fair!” come across
as a child’s outburst. It takes a lot of
adult training to learn and internalize what “justice” requires, to many it
requires a legal education, to know the difference between right and wrong
behavior toward others.
Doing “justice” in moments of
conflict implies that some human agent has greater authority than others
involved to reach the right result, backed up by the power to impose it. Imposition entails exerting power over
others. It begins with the authority we
grant adults like parents and teachers to teach children to “do as I say, or
else…” It evolves into legal
institutions, both public and private.
In moments of rule violation, it implies the need for confinement,
confiscation, or teaching a lesson both to the violator and to others who might
consider doing wrong, as by punishment, or to sound gentler, penalty or loss.
I call myself a recovering
lawyer. I have spent time in criminal
and civil courts as defense counsel, civil counsel, and as a party to a failed
civil lawsuit to build a “justice facility” including an expanded jail, and
qualified as an expert witness especially in child custody cases on behalf of
the best interest of the children. But
as I found myself dabbling in diplomacy—an aspiration that failed when I become
persona non grata as a critic of US legal defense of the war in Vietnam during
my internship in the US State Department Office of East Asian Legal Affairs in
1967—so as I got settled teaching criminal justice, I turned to victim-offender
mediation, to me, a legal form of the response to conflict Richard Quinney and
I came to call “peacemaking.” As I look
back now on that departure from “the rule of law,” I see it as a return to that
childhood sense I shared: that what matters most is not doing justice, whose
results may hurt or offend me, but seeking fairness.
It is common for us to seek “solutions”
to social problems, human conflict included.
They are by definition final, as in a “final solution.” As Gregory Bateson noted, in mathematics as
in everyday life, only closed systems have solutions, meaning that the solution
is tautological, true by definition, as when an “offender” is defined as “guilty”
in criminological research as in law by virtue of a “lawful verdict.” True by definition, whether by courts or as
presented and coded by victim and self-report surveyors. Solutions are found in deterministic models,
models of human interaction included, subject at law to appeal, generally on
matters of legal procedure, seldom on “questions of fact,” until the verdict
becomes “final.”
And as I have recently written,
seeking fairness is what Les Wilkins taught me to call “stochastic” process,
where the focus of one’s interests from one moment to the next depends on the
unpredictable, independent response of the other. In the case of mediation as it seemed to work
for parties I heard, Resolution—the content of any agreement parties reached—where
terms of agreement were created by the parties themselves, as they moved from
expression of fear and pain, acknowledgment and regret, to working out what
satisfied all concerned. There were
times at the latter stage that I as mediator threw out an idea that to me
encapsulated a particular issue, but to me, the most promising “agreements”
were on terms the parties themselves made up as they got to know each other, as
they reached for terms. Ideally, they
became the agents of their own change.
Realistically, coming to ownership of terms of settlement didn’t always
happen. Practically, the challenge was
to make it feel safe for parties to open up, to feel safe.
Thinking deterministically, we “hold
people responsible.” Thinking
stochastically, we invite parties to assume
responsibility for resolving their problems with
others concerned.
Basic rules of safety were to ask for no name-calling, no interruptions,
and to express my willingness to continue the process, reconvening if
necessary, until everyone in the room--“victims” and “offenders,” parents or companions,
principals or teachers, co-mediators—felt that everything that needed to be
said, had been said. Otherwise, there
were no rules as to what was admissible, no directions as to what evidence to
consider, no instructions as to terms on which parties can speak. Like Quaker meetings, ideally, mediation
ended by mutual consent. Terms of
resolution, like resolving a chord in a musical piece, are momentary to be
sure, while whether terms of settlement are following through in any continuing
relationship, objectively, remains in principle unpredictable—a matter of
reciprocity of trust. To borrow from
Elizabeth Kubler-Ross’s aspiration for facing one’s own impending death, the
aim of the process of mediation is to make it open and safe enough for parties
to move from anger and denial to acceptance, by assuming mutual responsibility
for moving forward.
At the extreme of personal violence, Murder Victims (families) for
Reconciliation, MVFR.org, includes members who have met and made peace with their
convicted murderers, and oppose the death penalty. The process of healing is represented also in
the Australian award-winning video of a conference in prison between those
convicted of murdering a teenaged worker in a Pizza Hut during an armed robbery
and their supporters; the parents, co-workers and friends of the victim, and a
police mediator, and a follow-up, “Facing the Demons,” which for instance in
the victim’s mother’s terms, led her to remember her son as he had lived rather
than as she identified him in the morgue, and the father took on one of the
offenders to work with him on educating against violence. MVFR members have been heard to say that they
enjoy a healing that victims who watch their murderers get executed do
not. On the other hand, after Ohio’s
first execution of a man who raped and killed his partner’s child, when the
warden had read the convict’s statement of apology and appealed for
forgiveness, victim’s family members attending the execution told reporters
they were relieved of their suffering, granted closure, by their murderer’s
being put to death, and surely many other victims gain satisfaction from “bringing
their offenders to justice.” Surely,
too, it would provoke consider fear and violence simply to “abolish” legal
systems which place limits on how much retaliate and inflict pain (Nils
Christie’s definition of the problem of violence) on those who hurt and
frighten us, on vengeance, on war. But
for my own safety and the safety of those I love and care about, I hope to
redirect our desire to punish and confine those who offend and hurt us, toward
feeling safe enough to embrace each other in the face of our differences,
violence included—as by making law enforcement and punishment less necessary,
and generally, to reconcile violence rather than being limited by responding in
kind. As among nations, groups and
individuals, I aim for making our relations—materially and socially—fairer,
interpersonally and structurally, where heterogeneity and differences become
assets, while confinement and separation in the face of difference and conflict
becomes an anachronism, as fighting abroad and incarcerating at home abated in
Norway in the nineteenth century, where now the Nobel Peace Prize is awarded. In Darwin’s terms, accommodating our
differences and diversifying our human relations, ultimately, promotes survival
of our species; while in principle punishment, confinement and enforced segregation
aren’t so necessary. Love and peace,
hal
