The Shape of Justice
By Charles Wellborn
[Dr. Charles Wellborn is Professor of Religion Emeritus, Florida State University and for 20 years was Dean of the Overseas campus in London, where he still lives.]
What is justice?
At first glance that appears to be a simple question. Many people would answer, "Justice is fairness," and be satisfied. Yet the distillation of the essence of justice and the perplexing problem of determining what constitutes "fairness" in real-life situations have occupied the attention of many of the world`s best legal, philosophic, and religious minds for centuries. From Plato and Aristotle in the ancient Greek world through Thomas Aquinas in the medieval period to modern legal scholars such as John Rawls, the meaning of justice has been endlessly debated.
In a recent issue of this journal (October, 1999) Dr. Ruth Ann Foster of the Truett Seminary at Baylor University gave us a perceptive delineation of "Biblical Justice." She rightly emphasized the partiality of that justice and its inherent bias toward the marginalized and oppressed individuals in society. The inbuilt final purpose of Biblical justice is the redemption of human beings, body and soul. Forgiveness, mercy, and compassion are seen as powerful forces in the redemptive process,
An oft-used example of the workings of Biblical justice is the familiar story of Jesus and the woman taken in adultery (John 8:1-11). The woman had committed a crime. Jesus did not condone or excuse her crime. Rather, he illustrated his trust in the power of redemptive love by forgiving the woman of her sin. With mercy and compassion he told her, "Go and sin no more." At the same time he focused attention on the hypocrisy of her accusers: "Let him who is without sin cast the first stone." Many Christians have found in this story an insight into the core of the Christian gospel.
If we study this incident in the search for the full meaning of justice, however, we must remind ourselves of certain salient considerations. It is important, for instance, to note that Jesus was not operating within the precincts of a formal court of law. He was dealing with an individual in a one-to-one relationship, and he was free in that context to exercise forgiveness and mercy, unhindered by any statutory codes of jurisprudence.
Clearly, the actions of Jesus in this particular case provide a valuable pattern for the personal moral conduct of his followers. Compassion and its accompanying special concern for the downtrodden and oppressed in this world are essential elements in the Christian life. They are not options for the believer but ethical imperatives.
When we seek to translate those imperatives into real-life situations, however, we face some major difficulties. In our society the Christian must be aware of two types of justice–Biblical justice and legal justice. The distinction between the two is necessary and inescapable. In ordinary life people are constrained to operate within communities and under governments. This means that we are bound by the limits of statutory prescriptions, as enacted by legislatures and interpreted by courts of law. Quite clearly, Biblical justice and legal justice are not one and the same thing. Thus, in this area, as in many others, the Christian citizen faces the problem of how to "render unto Caesar that which is Caesar`s, and unto God that which is God`s."
In Professor Foster`s article, previously referred to, she correctly rejects the traditional symbol of justice as a blindfolded woman with a pair of scales as an inadequate representation of Biblical justice. Still, that figure is frequently used as a symbol of legal justice. The woman with her impartial scales stands above the entrance to the Old Bailey, London`s Central Court of Criminal Justice. It is possible to argue that, while inappropriate as a symbol of Biblical justice, the figure is significant as a representation of impartiality, which is an essential element in legal justice.
When a Christian citizen sits as a judge or as a member of a jury, he or she is subject not only to Biblical imperatives but also to the complex demands of a statutory judicial system. Had Jesus been in such a position with the adulterous woman as an indicted prisoner before the court, he would not have been free to say, "Go and sin no more." Legal justice, in contrast to Biblical justice, does not–and cannot–operate in that fashion. It demands that all relevant facts be presented and a decision made as to the guilt or innocence of the person on trial. If, in the type of case we are discussing, the prisoner is found guilty by a jury, it is normally the responsibility of the judge to impose a sentence within certain strictly defined limits. In this situation the symbol of the blindfolded woman is entirely appropriate. Ideal legal justice is characterized by equality of treatment for all those who come in conflict with the law, regardless of factors such as race, gender, religion, or social and economic distinctions.
Does this emphasis upon the differences between Biblical and legal justice mean that they are irreconcilable and that there are no relevant points of contact between the two? I think not. When we recognize the partiality and special concern for the poor of Biblical justice, it is necessary to remember certain important considerations. First, Biblical justice does not condone or overlook the seriousness of criminal and unloving acts, whether these acts are committed by the rich and powerful or the poor and powerless. If a murder is committed, for example, one must recognize that a human life–often, a totally innocent one–has been tragically ended. The consequences for that person and his or her family and associates, all beloved by God, are inescapable. It is in this sense that the revolutionary and violent terrorist, however just he or she may feel their cause to be, cannot plead justification for destructive acts purely on the basis of poverty, oppression, or marginalization in society. Every human life is infinitely precious to God. Because all of us are individuals with a significant degree of free will and moral choice (though the scope of that freedom will vary from individual to individual), we all must necessarily face the consequences of our actions. The man or woman who commits a legal crime must be judged by legal justice, if a community, state, or nation is to function rightly.
The second important thing to remember in this connection is that Biblical justice does impinge in fundamental ways upon legal justice. Biblical justice demands that, within the operations of legal justice, every individual should be treated, not as an object or a "case," but as a human being. The legal concept of "fairness"–equality before the law–is a reflection of an important essence of Biblical justice. Insistence in legal practice upon the veracity and validity of evidence and the right of every accused individual to a speedy, orderly, and impartial judgment by his or her peers is certainly consistent with the structure of Biblical justice. Furthermore, Biblical justice insists that the state abstain from certain types of "cruel and inhuman" punishment–torture, for instance. Biblical justice constantly seeks to inject into legal justice elements of humane and civilized behavior.
I want here, however, to go beyond this basic area of identification between Biblical and legal justice to emphasize one particular way in which legal justice, within its own structures can be shaped by in the injunctions of Biblical justice with its emphasis on special attention to the poor and socially impoverished elements in our society, the so-called "shadow people."
In the early development of English law, the most important basis of the American legal system, the major constituent of jurisprudence was the "common law." In the absence of any substantial body of statutory legislation in medieval England, judicial decisions necessarily had to be based on and reflect the common customs of the society and community. Many cases were decided by reference to previous judgments, or precedents. Out of these precedents grew general rules which guided judges in particular cases. Subsequent cases, however, might reveal new and different circumstances for consideration. Many of these unique situations were the result of the constantly changing social and technological dimensions of the society. In such cases, the common-law judge was free to depart from precedent and establish a new rule of decision, thus establishing a new precedent for other magistrates adjudicating in similar situations. In this way common law incorporated a dynamic for change. As Justice Oliver Wendell Holmes wrote in his treatise, The Common Law, (1881), "The life of the common law has not been logic; it has been experience."
Alongside the common-law courts in medieval England a parallel system of jurisprudence developed–courts of equity. At first, equity courts were administered by the Church, but gradually they became part of the state`s legal structure. Equity courts originated in English law when subjects petitioned the monarch for relief in specific legal situations, especially those instances in which the common law did not seem to provide opportunities for justice. Equity developed into a special body of rules and judgments over and above those administered in other courts. Courts of equity provided legal remedies based on ideas of "fairness" to litigants or accused whose situations could not properly be judged by common law.
Over the centuries the development of extensive systems of specific legislation and judicial statutes took over most areas formerly covered by common law and equity, so that in modern times in both Britain and the United States statutory law has come to encompass most legal situations. Both the common law and the concept of equity, however, remain important in the interpretation of statutory laws, many of which are restatements of common law and equity principles.
It seems to me that the precepts of legal equity provide a significant bridge between legal and Biblical justice. In his influential book, A Theory of Justice 1971) John Rawls, the contemporary legal philosopher, draws extensively on ethical considerations, primarily those involving equity, to support his understanding of the meaning of justice. He develops the proposition that no advantage for any one group in a pluralistic and diverse society has the moral right to exist if that advantage does not in the long run benefit the most highly disadvantaged elements of that society. This implies that legal decisions should incorporate as an essential element a consideration of the relevant social, environmental, and economic circumstances of the accused or the litigants. Such an approach to legal justice certainly involves an application of the core of Biblical justice, though Rawls himself does not explicitly spell out this connection. Whenever the important background factors are ignored, serious miscarriages of justice, especially from the standpoint of Biblical norms, are all too likely to occur.
An over-simplified illustration may illuminate this point. Most people–certainly most Christians–would agree that the transgression of a poor woman who steals a loaf of bread to feed her hungry family ought not to be judged on the same level as the crime of an individual who, out of selfish greed, defrauds thousands of people out of their life savings. True, both acts are thefts in statutory terms, but considerations of equity should certainly operate in the assessment of punishment or penalty. (As an aside to any attorneys who may read this, I am not presuming to deal with specific legal aspects of equity but rather with a general concept.) While considerations of equity cannot override statutory specifics, the idea of "fairness" as a working legal principal is certainly necessary.
For the Christian citizen there is also another avenue of connection between legal and Biblical justice. Statutory law is enacted by legislatures, setting up judicial procedures and penalties. In a democratic society the Christian citizen has the opportunity to be involved in the political process in which laws take shape. From a Christian standpoint legal statutes should, wherever possible, be influenced by Biblical concepts such as the equality of all individuals before the law and the essential humanness of judicial procedures and penalties. As an example, it is certainly a Christian imperative to seek to emphasize in our penal system the necessity of rehabilitation as well as retribution–a concept sadly too often forgotten in our modern prisons, labeled by many experts as "universities of crime."
A sensational recent murder case in Britain can serve as a vivid illustration of what I am trying to emphasize here. I am quite sure that similar illustrations could be drawn from American legal history.
In February, 1993, two boys–Robert Thompson and Jon Venables, each aged ten years–enticed a two-year-old child, James Bulger, away from a shopping mall where his mother had left him unattended while she browsed in one of the mall`s shops. The boys took the toddler with them to an isolated area near a railroad track and there, for reasons never adequately explained, killed the child. (It never became clear whether both boys, or only one, actually participated in the murder.) No apparent motive existed. James Bulger was not sexually assaulted and had nothing of value for the boys to steal.
The horror of this brutal act, plus the lack of motivation, made the crime one that could easily be sensationalized, and the press, especially those tabloids known in Britain as the "gutter press," took full advantage of the, opportunity. By the time the two boys were arrested and charged with the crime, a climate of "mob justice" and "lynch law" had been created. The police, the courts, and politicians were all under tremendous public pressure. Even before the boys were tried and found guilty, editorials and screaming newspaper headlines were demanding vengeance in the name of the slain two-year-old and his distraught family.
In this atmosphere the events which occurred were not surprising. The two boys (by the time of the trial one was eleven, the other still ten) were tried in what was essentially an adult court. They sat through complicated judicial procedures which were obviously beyond their comprehension. In the months before they were found guilty they were given psychiatric examinations but were denied any treatment for what any objective person could see were greatly disturbed personalities.
During the trial the presiding judge refused to allow any testimony regarding the home, social, or economic background of the two boys, ruling that such evidence was irrelevant and inadmissible. The only fundamental question raised was, "Did the boys have any recognition of the fact that what they were doing was wrong?" In fact, both children came from broken and impoverished homes and had been reared in an atmosphere of contempt for the police and the law. They were frequent school truants whose parents had made no serious attempt to keep them in school. The quality of whatever moral training the boys had received could be seriously questioned. None of these circumstances was allowed to influence the final verdict and sentencing.
The guilty verdict was reached after less than an hour of jury discussion. The trial judge then assessed what were in effect life sentences on both boys but fixed a minimum eight year period of detention before they could be considered for any possible parole. Upon reviewing the verdict the Lord Chief Justice raised the minimum term to ten years. The press screamed its protest at the verdict, and the Home Secretary, who in Britain is the political head of the judicial system, genuflected to the popular outcry and overrode the judgment of the courts, raising the minimum period of imprisonment before possible parole to fifteen years.
Britain does not have capital punishment, but elements of the British people and press are continually calling for its return. For these people–those who demand a wasted life in payment for a wasted life–the Bulger case provided a powerful platform from which to shout for the blood of the two convicted children.
The case re-emerged in the public consciousness in late 1999 when the Inspector of Her Majesty`s Prisons, a highly respected public official, ventured the opinion, based on his study of the development of the two boys during their years of detention, that they might well be considered by the Home Secretary for an earlier parole hearing than had been prescribed. Both boys had been model prisoners and, in particular, Robert Thompson had made significant progress in his schooling and was preparing to take college entrance examinations, called "A-levels" in Britain.
The outburst that followed this announcement was predictable. The Inspector was accused of being "soft" on crime and a "weak-kneed liberal." Understandably, James Bulger`s parents reacted with indignation. Less understandably the "gutter press" screamed with horror and fury. The Home Secretary apparently put pressure on the Inspector, and he publicly retracted his statement.
One further development is significant. Early in 2000 the European Court of Human Rights, which within the structure of the European Community has jurisdiction over British courts in this type of case, ruled on an appeal of the now six-year-old verdict, that the two boys had not received a fair trial, since the proceedings of an adult court would be intimidatory and incomprehensible to children of their age. The Court also specified that hearings in such cases should be held in private or at least with limited public and press attendance. The Court further declared that purely political individuals, such as the Home Secretary, should not interfere in the legal process and that sentencing was a matter properly left to a judge and jury. The Court`s decision raised the possibility of a new trial for Robert Thompson and Jon Venables.
Are there important lessons to be learned from this sorry incident for the Christian citizen seeking to relate legal and Biblical justice? I believe there are several such propositions.
At what age does a child become morally and, therefore, criminally responsible for his or her actions? A precise answer to that question is extraordinarily difficult, but any answer must certainly take into account individual differences. It is absurd to say that all children reach an equal age of accountability at a set calendar age. Social and environmental factors, as well as the quality of the moral training which the child has received, must be taken into consideration.
Virtually every reputable child psychologist would agree that children, in general, are less able than most adults to realize the long-term consequences of their actions on other people, to reflect on their behavior, or to experience feelings of guilt and shame. These abilities develop as the child`s personality develops and matures.
I repeat here my conviction that neither legal nor Biblical justice allows those who commit crimes such as murder to escape responsibility for their acts. The individual concerned is guilty and must be punished, and the public as a whole must be protected from such further acts on his or her part. But it must also be stressed that the type of punishment should be, certainly in terms of Biblical justice, redemptive and rehabilitative. I submit that this concern is doubly important when the law deals with acts committed by children. While, ideally, all penal sanctions should carry the element of rehabilitation, the opportunities for such redemptive treatment are obviously much greater when we are dealing with very young offenders. It is, I believe, unchristian to believe that a child`s life is totally ruined beyond repair, however terrible an act he or she has committed. I know no scripture which supports such an idea.
At the very least, children should not be tried for offenses in an adult court setting. In Britain and, so far as I know, in the United States, (though the exact age may differ), criminal offenders under the age of 18 who are charged with less serious crimes are dealt with in youth or juvenile courts. Such practice implicitly recognizes the inappropriateness of adult courts for these individuals. Yet, in Britain when charged with murder or other more serious crimes, children must be tried in an adult setting. Following the recent school shootings in the United States, some people have demanded that the culprits–none of them adults–should be handled as if they were fully responsible individuals. To accede to these demands seems to me to be little more than an illogical sop to an atavistic public.
To return in conclusion to my general proposition, I have argued that Biblical justice should not be confused with legal justice. The actions of Jesus in a one-to-one personal relationship outside a formal court of law cannot be simply and without modification transferred to the domain of legal justice, bound by statutory law and judicial precedents.
I have also argued, however, that there is a viable bridge between Biblical and legal justice provided by judicial equity or "fairness," and that this bridge provides a way of introducing the Biblical demand for consideration of all relevant circumstances relating to a crime or an accused criminal. In this way the Christian concern for the poor and the oppressed becomes an important constituent of legal justice. Such an approach is consistent with the dimensions of Biblical justice in real-life situations. It avoids a naive, over-simplified approach by Christians to complex problems. In this regard the oft-asked question, "What would Jesus do?" is a legitimate one, but only if its application is fully understood.
I would suggest that in an increasingly complex society, the question might well be rephrased as "What could Jesus do in this actual situation (assuming that Jesus acts in this case in his fully human capacity, as we mortals must act)?" Put in this way, the question recognizes the concrete and inescapable limits within which human beings must choose and act.
The common phrase, "the art of the possible," applies not only in its original sense to politics, but also to the total ethical and moral task of Christians in a modern world. This does not in any way constitute a watering-down of the moral imperatives of Jesus or an abandonment of any of the ethical demands of the Christian faith. Rather, it opens up in practical ways the opportunity of Christian citizens to influence effectively the "shape of justice" in everyday life.
