Justice or fairness?

TO SEEK JUSTICE OR FAIRNESS?

Hal Pepinsky, pepinsky@indiana.edu, “peacemaking” at pepinsky.blogspot.com

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