How often in movies, on television and in video games, do we watch the so-called good people attacking the presumed bad people without realizing the good people and the bad people are doing the same thing, attacking and killing their enemies? We munch on our popcorn as the good people make the bad people hurt as much as the good people feel they have been hurt, and cheer when a lose-lose situation for all is deemed a win for the good. But if this is justice, why doesn't it lead to peace, instead of one attack followed by another in the next sequel?
One reason justice so often fails to produce the happy ending we expect is because of widespread confusion about what the term justice actually means. Does it mean impartiality? Fairness? Getting even? Killing the wrongdoers? Reconciliation? Forgiveness? Without a clear definition, it is possible for authority, decorum and technicalities to masquerade as justice, even when substance is lacking. We may fail to discern the difference.
How has our deep-seated confusion around justice prevailed for so long? As a former trial attorney, I can speak to that. In law school, I was told I would be learning the best legal system in the world, a system of punitive justice. When clients encounter a breach or a conflict, that system offers them punishment and revenge (punitive justice) as the way to address the breach. When they go home, to school and to work and they feel wronged, they model what they have experienced, they seek punishment and revenge.
Our schools have started calling for "Zero Tolerance," teaching our children at an early age how quickly we, in this culture, seek punishment and revenge. When they are bullied, or someone steals their sweetheart, they seek punishment and revenge.
When a breach in a relationship or the violation of community norms occurs, we often fail to recognize that there are two distinct models of justice to choose between.
On the one hand, our goal can be to punish the guilty, to get even, to seek revenge. This punitive type of justice seeks the imposition of control to enforce compliance; its answer to harm is more harm. The "justice" in this scenario is that the harm you do to those who have harmed you is to be proportional, i.e., the eyes gouged out are to be approximately equal to the teeth knocked out. It is this--proportional revenge--that the set of scales that we use to symbolize our justice system represents. Another way we express this is to say "the punishment must fit the crime." While this punitive form of justice requires a degree of restraint that definitely makes it superior to barbarism, we can do better.
Unitive justice, a far better choice, works according to an internal design that matches accountability with the harm or conflict being addressed. All participants treat one another with dignity and respect. The interested parties get to hear and be heard so all points of view are considered, enhancing the possibility of resolution and goodwill in their future relations. Compassion and loving kindness are at the heart of this form of justice, and the outcome is a benefit to all.
This unitive model of justice is emerging and maturing. It can now be found in restorative justice practices such as victim-offender conferencing and community conferencing, in some collaborative practices, in transformative mediation and transformational justice, in healing circles done in both public and private settings, in schools where restorative processes are used as the disciplinary program, and in cutting edge social service agencies that now use family conferencing to address family crises. It is even being seen as a process for addressing disputes in land use agencies, tax agencies and other agencies where disputes arise.
Replacing the old punitive system with unitive justice does not require a battle. In fact, unitive justice will not emerge out of conflict, because at the level of cause and effect, the means and the end are one. (War is not the road to peace, a topic for a later blog.) As the unitive justice models become available, we discover most people simply choose to use them instead of the adversarial models. I understand that in one area where the divorce attorneys were all trained in collaborative law, the judge who used to hear divorce cases five days a week now only hears them one day a week. This is how the shift from punitive to unitive justice will occur.
It's not surprising that attorneys who work in our punitive system of justice have a higher rate of depression than other professions, or that their alcohol abuse is higher than among the general population, as is their suicide rate. Being continuously forced to take stands that are counter to one's inner moral compass regarding healthy relationships makes for a highly unhappy work environment.
I was part of the punitive justice system for many years. When I realized that my clients came to me with broken relationships and what I did made them worse, I began to realize punitive justice is not the type of justice I want to foster. I am far happier now, practicing collaborative law, offering collaborative legal services to my divorcing clients, my business clients, married couples and others. When both clients win, so do the attorneys. This deserves to be called justice.
Posted on http://www.GenuineJustice.com Aug. 17, 2010
