Thursday, January 11, 2007

Justice I

Justice for Unity; First in a Series

By John Taylor; 2007 January 11

This past fall our monthly Philosopher's Cafe meeting in the Wainfleet Library discussed the topic, "What is love?" I was less than satisfied with the results. I realized that I firmly believe that it is impossible to talk about love in a vacuum like that without first being very firm on an antecedent question, "What is justice?" So I rather forcefully suggested that we discuss that question as well, and today we will be doing that. Normally Stu, using his training as a primary school teacher, handles the introductory classroom preparation for our Philosopher's Cafe by looking up a few quotes on the given topic and using them as conversation starters. I do not participate in this, not out of laziness but because I do not think that such forethought is in the spirit of the Socrates Cafe movement, which places the onus on participants, even as far as choosing a topic spontaneously and on the spot.

Nonetheless, I feel so strongly about our topic justice that this time I have indulged in some belated propaedeutics. I went over what I have written in past years and to my shock and awe I discovered that the amount is sparse. Pick just about any other Baha'i principle and there is more than enough material to overwhelm, but not so with justice. What I do have tends to be on sub-categories of justice. I have written no fewer than thirty essays on suicide, five on reward and punishment, and only six on law and justice itself. Of those six probably more than half are about law rather than justice proper. Part of the explanation may be that in categorizing the essays over the years I felt that justice is such a basic that it would have undermined the foundations of other principles to have separated out everything touching upon it.

Nonetheless, justice is an independent Baha'i principle, as the Master affirmed several times, and I definitely should treat it as such. So I will start off now a new series on justice as an independent Baha'i principle. But before I do, let me share this slightly revised version of an essay I submitted for a High School law course that I took just before we bought this house and moved to Dunnville. In a sense it marks the first and last of two major phases in my life, the last of a dormant, research phase and the first of this daily essay period. I have made revisions but left the argument and presentation largely as they were.

 

Justice for Unity, An Alternative to the Adversarial system

 Originally submitted for a course in law at St. Jean de Brebeuf High School, Instructor: Mr. C. Silvestri, 18 December, 1996

 
If one historical lesson is universally recognized, it is that if we are to permanently better our world we must begin by improving the laws that condition justice, for justice is the very grounds of our existence. "No peace without justice!" is a chant we inevitably hear from demonstrators and activists. A turning point came with the modern resurgence of medieval intolerance in the gross abuses of human rights by the Nazi Regime before and during the Second World War. This prompted the 1947 United Nations' Universal Declaration of Human Rights. Similarly, the environmental crisis has prompted a series of consultations which will lead in 1999 to an "Earth Charter." (Cameron Smith, "Earth Charter draft involves global input," Toronto Star, 5 October, 1996, p. C6) Perhaps the reason we are so quick to declare universal rights and slow to implement them on the world level is that we are confused about the very nature and purpose of law.

The textbook definition of the purpose of law is that it aims to fulfill the goals of society, to resolve disputes, to protect the person, property and rights, and to provide order in society. (Talos, Steven, et al., Understanding the Law, McGraw-Hill, Ryerson, Ltd., Toronto, 1990., pp. 29-31) Unfortunately, the goals of society as presently understood are too narrow to provide order and security, especially on a world level. They manage to bolster the Status Quo but are glaringly inadequate to solve ingrained, structural injustices. To mention only the most egregious example, the relatively tiny population of North America wastes the energy and controls the lion's share of world resources; even among North Americans a tiny minority has virtually all the wealth and property. Bad as it is, the imbalance is steadily worsening with the passage of time.

If this massive failure of distributive justice is ever to be righted, we must clarify our understanding of the purpose of law and rethink what justice is all about. Justice is an extremely difficult concept to nail down because it is at the same time the most universal and the most particular of quantities. It is universal in that everybody deserves a fair shake, but how can we know what is fair when there is such diversity? Everybody is an individual with particular needs, tastes and inclinations. Hence, one of the oldest definitions of justice is, "To each his own," Suum Cuique Tribuere.

A just order, then, would be universal, it would assure that the rights of the weak are protected while giving every citizen a maximal say in what is theirs. Such universality is a broadly recognized outcome of natural law theory and at the same time it pretty much defines the belief in God, a belief that world-wide opinion polls agree is held by the vast majority of the human race. A supreme God can be presumed to have a purpose and a use for every creature. An official paper put out by the Catholic Church demonstrates what this entails,

"`Justice' is not simply a matter of proper distribution of goods (distributive justice) but also of permitting and indeed requiring each person to participate in the production of those goods (social justice)." (Conference of Catholic Bishops, quoted in Lebacqz, Karen, Six Theories of Justice, Perspectives from Philosophical and Theological Ethics, Augsburg Publishing House, Minneapolis, 1986., p. 69)

My own religion, the Baha'i Faith, similarly upholds distributive and social justice, and perhaps goes further. Baha'u'llah, the nineteenth century religious reformer who founded the Baha'i Faith, wrote that justice, wonderful as it is, is not an end in itself; it has a particular purpose,

"The light of men is Justice. Quench it not with the contrary winds of oppression and tyranny. The purpose of justice is the appearance of unity among men." (Baha'u'llah, Tablets of Baha'u'llah, Baha'i World Centre Publications, Haifa, Israel, 1978, pp. 66-7)

Any law will uphold justice if and only if it promotes unity. A just world order would promote unity, both for individuals and on as universal a level as possible. Baha'is further believe that when everybody participates in any social goal, a spiritual power for good is unleashed in the heart. We promote a methodology we call "consultation" designed to bring religious attitudes and insights into play in bringing diverse personalities and viewpoints together in harmonious unity.

Many criminologists already recognize universality not only as a goal for the justice system, but as an alternative to the present advocacy model.

"A participatory justice system, using dispute resolution techniques such as mediation and negotiation and having as a primary objective consensual agreements between parties and restoration of order, has the potential to be less costly, more efficient, and more effective than the competitive and conflict oriented approaches of the current adversarial model of criminal justice." (Griffiths, Curt, et al, Canadian Criminal Justice, Butterworth’s, Toronto, 1989., p. 595)

The danger, they point out, is that the state will use community participation only to legitimize current practice, to tighten their control and further expand the size of an already bloated system. (Griffiths, ibid, p. 525) Clayton Ruby writes that "Modern victim movements are supported by the establishment - police, prosecutors, government - only when they ... settle for the establishment agenda: harsher penalties and more criminal prosecutions." (Clayton C. Ruby, Spousal Abuse: Establishment Agenda Just Won't Work, letter to Toronto Star, 16 November, 1996., p. d3) The criminal justice system, this famous Canadian jurist points out, works only by incapacitation, and their support vanishes when these groups insist on financial support for their real needs.

Clearly, any system based on conflict and punishment cannot involve everyone, since it assumes a world made up of "bad guys" and "good guys". For Baha'is, this conflict model is a symptom of a deeper problem.

"Whether in the form of the adversarial structure of civil government, the advocacy principle informing most of civil law, a glorification of the struggle between classes and other social groups, or the competitive spirit dominating so much of modern life, conflict is accepted as the mainspring of human interaction. It represents yet another expression in social organization of the materialistic interpretation of life that has progressively consolidated itself over the past two centuries." (Office of Public Information, Baha'i International Community, The Prosperity of Humanity, Baha’i Publishing Trust, Wilmette, Ill., 1995, Paragraph 13. This document was put forward at the World Summit for Social Development in Copenhagen, 1995 by the Baha'i International Community, a non-governmental organization at the United Nations)

Conflict is inimical to a fundamental tenet of Natural Law theory, which holds that we should follow the example of a loving God who created all and nurtures everybody. "All have sinned" and all are dependent on divine mercy rather than justice. It follows that a legal system intended to uphold unity would try to eliminate disputes before they arise. That this is not so is attested to by the fact that by one estimate less than one percent of the seven billion dollars spent annually on police, courts and jails in Canada goes to crime prevention. (Estimate of Judith Higginbotham of the urban safety committee of the Canadian Federation of Municipalities, quoted in "Municipalities Urge National Crime Group, Seek More Spending on Prevention", Toronto Star, 6 December, 1991, p. C14) It is well known that Eastern nations get by with a fraction of the number of lawyers as the U.S. by using alternative means.

"The role of law in China and Japan ...is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control." (Article, Law, in Funk and Wagnall’s New Encyclopedia, 1996 "Encarta" electronic version, R. R. Donnelly and Sons, Publishers)

Another reason to be suspicious of the adversarial system is that it arose from a patriarchal model of governance. Gwynne Dyer and others have taken the idea of patriarchy out of its former feminist context and placed it in the mainstream of peace theory. (cf. for example, the four hour CBC documentary "The Human Race" by Gwynne Dyer, reviewed in Macleans Magazine, 5 Sep/94, p. 52) In essence, patriarchy was a way of ordering a society so as to make it a more effective military force. Women were to stay at home and have as many babies as possible while boys are trained from birth to grow up to become good cannon fodder. Though there is no need for comprehensive military preparation now, and the need for equality for women is widely recognized, our society refuses to cast aside the remnants of patriarchy. For example, boys are still enthusiastically raised in the "us" versus "them" mentality of competitive team sports, traditionally a physical and mental preparation for war. In law, advocacy grew from trial by combat, (Talos, ibid., pp. 326-7) a system that could only arise in a society where every citizen was expected to be a trained soldier.

In a conflict-based system gross structural injustices seem natural, even inevitable. The grand achievement of constitutional law in industrialized democracies has been to assure adequate rights for the people living under strong nationalist governments. But structural injustices on the world level seep down and tend to nullify this achievement. Two examples, one linguistic, the other financial, underline this point.

On a world level, the language barrier reinforces fundamental inequities. Most of the human race is excluded by the minority language they speak from defending their fundamental human rights in the forum of world opinion. In Canada, the lack of an officially sanctioned and promoted world inter-language (that is, a second language, such as Esperanto, taught alongside one's cultural language that would be used for communication outside one's ethnic group) sets English, French, and Native languages into direct competition with each other. This artificial conflict of interests periodically threatens the survival of the nation itself.

Elite languages like French and English have constitutional protection but the languages of the founding peoples, though no longer officially forbidden, are in large part ignored, their perpetuation sporadically funded, if at all. No doubt, these languages could make a unique contribution for Canadian justice reform. For example, many native languages rely on verbs rather than nouns, which conveys "an emphasis on the belief that people are not forever one thing or another," and they avoid labels like `criminal' or recidivist'. (cf. review by Rupert Ross in The Toronto Star, 12 October, 1996, of Ross, Rupert, Returning to the Teachings, Exploring Aboriginal Justice, Penguin, 1996)

In economics, the lack of a world government allows the extremely wealthy and multi-national corporations to operate outside the legal restraint of any state. In the financial sector so-called "off-shore" financial institutions siphon trillions of dollars each year from the tax base. (cf. Naylor, Richard, Hot Money and the Politics of Debt, McClelland and Stewart, Toronto, 1987) This has ravished poor countries for many decades, but lately even wealthy nations are sinking into debt and severe financial restraint. Thrift is good, but scrimping on infrastructure, especially education, is counterproductive; in the long run letting trillions of tax dollars to leak away reduces overall wealth and increases the expenses of patching up problems caused by, for example, an ignorant, crime ridden populace. It is not a coincidence that the United States, the wealthiest nation in the world, is at the same time the most conflict-oriented, the most openly subscribes to the doctrines of power politics, and in its inner cities is, with few equals, the most crime ridden.

As a Baha'i I believe that a universal, cooperative model instituted under a world government would be the only reform that could conceivably solve these structural problems of language, budgetary deficits and crime.

How might `justice for unity' be implemented? What might seem an insurmountably difficult task could come about quicker than expected. While technology may seem to have little to do with "justice for unity," it is technical means that define how universal unity can be. Millennia ago transportation was so slow that only unity on the level of a city-state was practicable. Now, instant communication between anyone anywhere in the world allows unity that is both intimate and universal, everywhere on the planet.

Computers and communications have revolutionized every discipline, but the legal system remains largely untouched. Advances that are unhesitatingly accepted elsewhere become bogged down in the mire of red tape and the potential for abuse of human rights. Unfortunately, there is great suspicion between citizens and government, and among people, police and the criminal justice system. Some criminologists, for example, doubt the effectiveness of technological means, not in themselves, but because of a lack of broad support for the justice system in the community. (Curt Griffiths, et al, Canadian Criminal Justice, Butterworths, Toronto, 1989, p. 593) This atmosphere of suspicion for change is inevitable in an adversarial system.

Improvements like video and electronic surveillance in police investigations, database information systems, and monitoring of offenders under house arrest "may only be the tip of the technological iceberg." (Griffith, idem.) Work is being done to simplify civil cases and pre-trial motions by using fax and conference calls to argue them. (Tracy Tyler, "Argue by fax, phone, civil lawyers urged," Toronto Star, 29 October, 1991, p. A6) Artificial intelligence can even be used to predict judicial decisions, thus making abstruse legal problem solving available to non-professionals.

"Nevertheless, such strategies may serve only to extend the power of the criminal justice system without improving its effectiveness in addressing the needs of communities, victims, or offenders. If it is acknowledged that criminal justice agencies are largely reactive in nature and are able to respond only to the symptoms rather than the causes of crime, caution should be exercised in assuming that the adoption of more sophisticated technologies will solve the crime problem or increase the effectiveness and relevance of the criminal justice response. In the coming years, the application of high technology will raise numerous ethical and legal questions, but may also provide an opportunity to replace the nearly two-century-old techniques of parole, probation, and correctional institutions." (Griffith, Ibid., pp. 593-4)

The way for legal technology to address the root causes of crime is to engage everyone in an educative dialogue, a discussion aimed at establishing justice for unity in the hearts and minds of all. I would suggest that this could be done using public meetings, extended by internet resources such as Usenet Newsgroups and Internet Relay Chat discussions. But ultimately such reform would have to rely on the media, which now are unfortunately owned and run by private corporations. Their concern right now is to promote corporate interests and products by attracting interest in the seamy, bloody aspects of legal transgressions, not in improving the legal system itself. While it is not at all clear what it would take to reform the press, broader ownership among community, religious and government groups would no doubt help.

The cooperative model of justice for unity would not abolish the law but fulfill it. It calls for the expansion of legal thinking into the consciousness of every world citizen. This means charters of rights and freedoms not only between people and government, and people and the environment, but also between workers and employers, and individuals and any other type of organization. An "Employee's Bill of Rights" has been proposed (proposal of David W. Ewing, in Freedom Inside the Organization, for an Employee's Bill of Rights, cited in Spence, Gerry, With Justice for None, Destroying an American Myth, Times Books, New York, NY, 1989., p. 333) that would protect workers from discrimination due to justly criticizing their employer, against being fired for any outside activities, and would protect their privacy and assure the right to a fair hearing upon being fired.

Combining high technology with `justice for unity' will no doubt bring the long arm of the law into areas of human life that cannot be foreseen. Under a `justice for unity' system one can be confident that this would be a good thing for both society and the individual.

 

BIBLIOGRAPHY

Baha'u'llah, Tablets of Baha'u'llah, Baha’i World Centre, Haifa, Israel, 1978.

Griffiths, Curt, et al, Canadian Criminal Justice, Butterworth’s, Toronto, 1989.

Lebacqz, Karen, Six Theories of Justice, Perspectives from Philosophical and Theological Ethics, Augsburg Publishing House, Minneapolis, 1986.

Office of Public Information, Baha'i International Community, The Prosperity of Humanity, Baha’i Publishing Trust, Wilmette, Ill., 1995.

Spence, Gerry, With Justice for None, Destroying an American Myth, Times Books, New York, NY, 1989.

Talos, Steven, et al., Understanding the Law, McGraw-Hill, Ryerson, Ltd., Toronto, 1990.

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