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Restorative Justice: a Christian Approach to Conflict Resolution
A 'New Testament' Flavour By rejecting legalism and formalism in favour of personal encounter and the engagement of those directly affected, restorative justice has a distinctly 'New Testament' þavour. Because it is based outside the courts (even where courts have a supervisory role) restorative justice is free from the rituals of the courtroom and the formalism of the Pharisees. If a lawyer is present it is not as advocate, but as advisor and supporter. Professionals do not run or own the process. Given that we lawyers have for centuries tended to act as though we had a monopoly on justice, it comes as a bit of a shock to find that the parties can often, if not usually, work it out better themselves! Is there a parallel with St Paul's question? "Where is the wise man? Where is the scholar? . . . Has not God made foolish the wisdom of the world?"1 Perhaps the very procedures western lawyers have been so proud of have prevented God from being at work in our justice systems. A plea of 'Not Guilty' may not mean "I did not do it" but rather "You prove it!" This approach to pleading does the reverse of encouraging personal accountability: it encourages people to deny the charge and see if they can 'get off'.2 As Brent Cotter QC3 - a senior Canadian law officer, then Deputy Minister of Justice of Saskatchewan, said: "In a family, such behaviour would be considered dysfunctional. In a community it is still dysfunctional." So we must ask ourselves whether Christ would have supported a system that produced 'adversaries' and encouraged denial, gamesmanship and ritual. The love of God and the support of a God who can hold us in his arms can only be gained by an experience of a living person, Jesus Christ, not by book learning or being instructed by authority figures. In a similar way restorative justice relies for its power not on following orders or directions but on the experience of an encounter with a living person - an encounter in which grief or sorrow can be shared, some responsibility accepted, and a change of heart made possible. Of course it would be a mistake to pretend that the Old Testament does not contain the seeds of restorative justice, just as it contains the seeds of the New Testament. One of the most influential books on restorative justice has been Changing Lenses written in 1990 by Howard Zehr, a gentle Mennonite Christian from Virginia, USA, who has visited New Zealand several times. Zehr - in my view a modern prophet of justice - finds some support for restorative justice in the Old Testament concept of 'shalom', which refers to peace between people and God as well as between people themselves on a variety of levels.4 He builds a picture of restorative justice as healing justice and as peacemaking in the spirit of shalom. But there is also the darker side of Old Testament justice - where the loss of one eye allowed5 the plucking out of another, where terrible retribution could be wrought upon people guilty only by association, where adultery was a capital offence, where redemption often seemed impossible. Christ pointed us in the completely opposite direction - turn the other cheek, meet violence with love, "love one another as I have loved you". A Place for Grace Restorative justice allows a place for grace. It is very easy in a world of high achievers - like that inhabited by the legal profession - to be caught up in the belief that we succeed in life by our own efforts. That of course is not the Christian message. After reading Phillip Yancey's wonderful book What's So Amazing About Grace? it occurred to me that it was often God's grace at work in restorative justice. In such a context an expression of forgiveness cannot be something expected of victims - it is theirs to give if they feel it appropriate at the time, and they sometimes do. More often, though, there is a place for grace, that unearned generosity of spirit, and its transforming power. That grace can make a difference is exemplified by the case of a young man in Wellington, who at the age of 16 committed two burglaries. He had been in trouble before and been to family group conferences but this time he didn't wait around; he took off for the South Island and the police lost contact with him. Two years later things had changed in his life. His partner was pregnant and he was going to become a father. He wanted to clean up his past and put behind him the mistakes that he had made so that they did not come back to haunt his new family. He handed himself in to the police and asked that a family group conference be arranged where he could meet the people who owned the two houses he had burgled. He had a job and he had worked out that he could repay the damage suffered by these two families (which was quite a lot of money - about $1500) at $50 per week. He put forward that proposal and on a whiteboard set out his entire budget, including expected expenses for when the baby arrived. He also offered to do community service in addition to paying this reparation. The victims were so impressed that they said they wanted the $1500 spent not on themselves, but on the baby, to make sure that it had the start in life that the young offender had never been given. They also said that instead of community service they wanted him and his partner to attend a parenting course. They wanted to see broken the cycle in which he had been caught up from a young age. The victims also wanted to be kept informed, and it was agreed that when the baby was six months old the young man would write a letter to them to tell them how things had been going for him and his new family. Christians would say that the gracious response of those victims was an expression of the love of God. Perhaps non-Christians would see it as an expression of that love which desires the good of the other. The victim who does not demand a 'pound of flesh' or an eye for the eye that has been lost is freeing both sides from the cycle of action and reaction, of 'take' and 'payback'. The victim wanting to see a better outcome for both parties (victim and offender) exhibits generosity of spirit in an act of grace. Like all human beings offenders do not expect such generosity, and their defences can be overcome by grace. As Yancey puts it:6 Justice has a good and righteous and rational kind of power. The power of grace is different: unworldly, transforming, supernatural. Only the gracious power of love can break the cycle of violence, anger and revenge. Isn't this what we should be seeking for our system of justice? Other Christian Values Quite apart from the possibility of forgiveness and grace, a restorative justice conference encourages the expression of remorse and a willingness to change: it encourages repentance. This often follows when the victim expresses distress and anger at what he/she has suffered and the offender comes to see the crime in human terms that bypass rationalisations like 'it's just property', or 'they can afford it' or 'he deserved it'. As we would expect, repentance in turn allows a gracious response, or an expression of forgiveness, and from there the parties tend naturally to look to the future and how things can be changed for the better, both for the victim and for the offender. Healing can begin to occur in a meaningful way, for all parties, especially when offenders are enabled to deal with their sense of guilt and victims are released from the worries and anxiety of the past and can start rebuilding their lives. Repentance, forgiveness, reconciliation, renewal, healing - all these find a place in restorative justice. How many of these factors are to be found in the adversary model? Precious few, I suggest, unless by accident. The parties are strongly discouraged from meeting except in court, offenders are told to admit nothing and certainly not to apologise, victims never get a chance to put their questions ("Why me? Why did you do it? Are you going to do it again?"), the process encourages denial rather than acceptance of responsibility, and accountability is impersonal and often rejected. Even punishment, the intended means of control, can be shrugged off as unjustified (ie the offender becomes a victim), or meaningless ("I don't care what you do to me"). As I have often stressed, punishment is not ruled out in restorative justice. Most conference plans have a punitive element, but punishment is not the overriding objective as it is in the traditional system; rather the emphasis is on making things right. Perhaps it is a mistake to call the adversary model 'the traditional system'. In the scale of things it is a relatively recent arrival. For tribal societies, without the central State, justice necessarily resided in the community and focussed on preventing feuds and generally keeping the peace. In such systems the victim had a central role and restoring the victim (and also the offender) to a place of respect was the key to restoring justice. Restorative justice can therefore be seen as a more natural form of justice, both within families and within communities; it is second nature to most indigenous peoples today, including Maori.7 Partnership model vs Dominator model Restorative justice reflects a partnership model rather than a dominator model. I take these terms from Riane Eisler's The Chalice and the Blade: Our History, Our Future.8 This powerful American writer tells of the Minoan people who lived in peace on the island of Crete for two or three thousand years. At about 2000 BC their population was some 100,000. She describes theirs as a 'partnership' culture, where men and women could be gods, leaders, guides and protectors. It was a culture amazingly rich in the arts and with an advanced standard of living. Crete was, in Homer's words, "a rich and lovely land".9 It was a place where "the economy prospered and the arts flourished".10 The author then contrasts this partnership culture with the 'dominator' culture - "in which men must keep conquering - be it nature, women, or other men".11 I do not know whether Eisler is a Christian, but I was fascinated to see her description of Christ as teaching and living out partnership values, as contrasted with the Christian Church which very quickly reverted to the hierarchical, patriarchal, authoritarian model that Eisler suggests goes hand in hand with male violence in the dominator model. Eisler does not limit herself to Minoan Crete, but goes right back to the Neolithic age and summarises the changing view of that past found in modern writers: The old view was that the earliest human kinship (and later economic relations) developed from men hunting and killing. The new view is that the foundations for social organisation came from mothers and children sharing. The old view was of prehistory as the story of 'man the hunter-warrior'. The new view is of both women and men using our unique human faculties to support and enhance life . . . . In sum, under the new view of cultural evolution, male dominance, male violence and authoritarianism are not inevitable, eternal givens. And rather than being just a 'utopian dream', a more peaceful and egalitarian world is a real possibility for our future.12 While her book does not address issues of criminal justice, through it I came to see restorative justice as inherently a democratic, partnership model, a liberating force with a Christian foundation, and the adversary system as essentially an autocratic, Old Testament, dominator model that relies on control. I also came to realise that the debate about restorative justice reflects much wider cultural issues concerning the way in which people should relate to and govern each other. Avoiding Revenge Christians are called to avoid revenge, and to leave judgment for sin and evil to God. Ten years ago Auckland University Chaplain Revd Ray Galvin gave a sermon on prison reform and the gospel.13 I cannot improve on what he had to say about revenge: If there is to be vengeance for human sin it is for God to mete out, for God is the only perfect judge . . . . To take revenge and demand pound for pound is to go down a blind alley. No good ever came from it. It simply multiplies evil. It also presupposes that the one who takes revenge is morally superior to the one on whom revenge is taken. In this vein I found one of the most powerful passages in What's So Amazing About Grace? to be the analysis of the confrontation between Jesus and the Pharisees concerning the stoning of the woman caught in adultery, ending with this reminder of where we all stand: Thus in a brilliant stroke Jesus replaces the two assumed categories, righteous and guilty, with two different categories: sinners who admit, and sinners who deny.14 There is a parallel here, too, with restorative justice - for it is a process that allows the responsibility of different people to be brought in to the equation, rather than focussing exclusively on the guilt of one person, the offender. It is not unheard of for victims to respond at some point by acknowledging that they too might have handled things differently. That happened in my court just this week. Particularly in Youth Justice the spotlight often turns on the role of the family - how have they let this develop, what were they doing about the growing problem, and what part will they play in putting things right? Even officialdom can be called to account: why was it necessary to make an arrest for such a minor matter? What has the Care and Protection division done about the complaints of neglect and violence towards this young person? Satisfactory answers may be hard to find, but at least it is possible to consider the wider picture, while at the same time holding offenders accountable in a meaningful way. In his sermon Revd Galvin also reminded us that we should learn to see Christ in the prisoners, for "Jesus said . . . that whenever we visit and comfort a prisoner, we visit and comfort Christ himself. The prisoners, the poor, the sick and the lonely are all given this special status in the gospel. When we meet them, we meet Christ." I believe that this encourages us to remember that Jesus is in the people we process as criminals, just as he is in us, and for that reason if for no other they are to be treated with dignity and respect. The passage from Matthew 25 to which Revd Galvin refers comes near the end of Jesus' ministry, a few days before his death. It is significant that near the beginning of his public ministry, in his home town of Nazareth, Jesus was handed the scroll of the prophet Isaiah. Unrolling it he found the place where it was written:
"Today," said Jesus, "this scripture is fulfilled in your hearing."16 Have we as followers of Christ been anointed to preach good news to the poor, to proclaim freedom for the prisoners, new sight for the blind and release from oppression? If so, perhaps we need to reassess our criminal justice system and ask some basic questions about its dependence upon punishment (and especially prisons) as a means of control. Does it deliver justice to the poor (and in particular, to victims)? Are we too easily blinded by the enjoyment (and the dust) of forensic battle do we need our eyes opened? Are our legal systems instruments of liberation or of oppression? Notes 2 "Accountability in the Community: Taking Responsibility for Offending" Re-Thinking Criminal Justice Vol 1 Legal Research Foundation: Auckland, 1995. 3 Restorative Justice Conference held at Saskatoon, Canada, in March 1995. 4 See chapter 8 Changing Lenses, Howard Zehr, 1990. 5 I acknowledge that the New Testament interpretation of the Old has been disputed by Jewish scholars, including no less a person than Lord Jakobovits, then Chief Rabbi of the United Kingdom, in his letter to The Times 20 February 1991. He wrote that the concept of an eye for an eye was introduced to prevent excessive retribution and has traditionally been construed as requiring monetary compensation to be paid 'instead of' the lost eye. 7 Their representations were very influential in shaping our Youth Justice legislation, the Children, Young Persons and Their Families Act 1989. 8 HarperCollins, San Francisco, 1987. 13 Auckland District Law Society's Annual Church Service, 1 February 1991.
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Fred
McElrea was sworn in as a District Court Judge in 1988 and was later appointed
a Youth Court Judge. He has written papers and contributed to various
publications on Youth Justice, Restorative Justice, Criminal Justice and
Mental Health law. A keen sailor, Fred is married to Margaret and has
five children and three grandchildren. He is an active member of St Oswalds
Parish, One Tree Hill, Auckland. This article is adapted from his paper
"A Christian Approach to Conflict Resolution" given at a seminar
entitled "What does the Lord require of Christians in conflict?"
at the Australasian Christian Legal Convention, Melbourne, 1-4 February
2001.