Keynote speech to a seminar on
"Overcoming violence: Rethinking our ministry of reconciliation"
Ecumenical Institute, Bossey, August, 8, 2001
Dr. Guillermo Kerber
International Affairs, Peace & Human Security Team
World Council of Churches
Violent conflict is placed at the very beginning of the history of human being, in the first chapters of the Bible. Immediately after the first Original Sin, that is a sin against God but is not violent, comes the story of Cain. Let’s read it.
1 Now Adam slept with his wife, Eve, and she became pregnant. When the time came, she gave birth to Cain, and she said, "With the LORD's help, I have brought forth a man!" 2 Later she gave birth to a second son and named him Abel. When they grew up, Abel became a shepherd, while Cain was a farmer.
3 At harvest time Cain brought to the LORD a gift of his farm produce, 4 while Abel brought several choice lambs from the best of his flock. The LORD accepted Abel and his offering, 5 but he did not accept Cain and his offering. This made Cain very angry and dejected. 6 "Why are you so angry?" the LORD asked him. "Why do you look so dejected? 7 You will be accepted if you respond in the right way. But if you refuse to respond correctly, then watch out! Sin is waiting to attack and destroy you, and you must subdue it."
8 Later Cain suggested to his brother, Abel, "Let's go out into the fields." And while they were there, Cain attacked and killed his brother.
9 Afterward the LORD asked Cain, "Where is your brother? Where is Abel?" "I don't know!" Cain retorted. "Am I supposed to keep track of him wherever he goes?" 10 But the LORD said, "What have you done? Listen - your brother's blood cries out to me from the ground! 11 You are hereby banished from the ground you have defiled with your brother's blood. 12 No longer will it yield abundant crops for you, no matter how hard you work! From now on you will be a homeless fugitive on the earth, constantly wandering from place to place."
13 Cain replied to the LORD, "My punishment is too great for me to bear! 14 You have banished me from my land and from your presence; you have made me a wandering fugitive. All who see me will try to kill me!" 15 The LORD replied, "They will not kill you, for I will give seven times your punishment to anyone who does." Then the LORD put a mark on Cain to warn anyone who might try to kill him.
Cain’s story (Gen. 4, 1-15) shows some of the basics of violent conflict. What can we find in this well-known story? A man kills his brother. He denies it. He is punished for his murder.
What else can we find? What do we see? We can find a crime, a victim and an offender, the institution of legal proceedings, a verdict, the punishment, a plea (alegato), an appeal, a final sentence.
As you probably realized I intentionally tried to interpret Cain’s story from a legal perspective. I probably did the contrary of what the author of this chapter of Genesis did. From his own experience of trials or administration of justice, he drew this picture of how evil, and specifically violence, between human beings was present since the beginning of history.
A direct offence to God (first, original sin), and an indirect offence to God through violence to the brother. The latter immediately after the former. And in the New Testament as a correlate to this, when Jesus is asked by the Pharisees which is the greatest commandment in the Law, he answeres "Love the Lord, Love your neighbour" (Mt 22 34-40).
Current legal procedures
Though thousands of years have passed since the writer wrote this story, legal proceedings, are fundamentally unchanged. The history of law (in which Hammurabi’s code or Talion’s Law played a key role) is the history of attempts to guarantee correct proceedings in order to achieve justice.
If we schematize the process, we find:
OFFENDER
TRIALSENTENCEPUNISHMENT
(IMPRISONMENT)JUSTICE?
CRIME
VICTIM
In the framework of current criminal systems, attention is on the crime committed. Punishment is related to crime, and imprisonment or confinement is the most common way to punish a criminal. The goal of confinement is to protect society from the danger of the criminal, who is expected to commit new crimes if he/she is set free. It is also seen as a pedagogical means of preventing other citizens from breaking a law.
Almost immediately after a crime is committed, the victim is forgotten and the central issue is what, how, and how many times, the law was infringed. And in the biblical story, Abel is almost forgotten while Cain remains the major protagonist of the story.
Lawyers and judges have strongly criticized this system although it prevails around the world, and critical criminology has become an important trend in legal theory. It has been also criticized by philosophers like Michel Foucault, whose "Surveiller et punir" (1975) and related writings condemned prisons as closed and totalitarian institutions. Other critics have focused on the processes themselves, and their failure to rehabilitate criminals after they have served their sentences.
The current criminal system stresses punishment, the protection and education of society through the isolation of the criminal. Little or no attention is paid to the victims of the aggression, and during the trial, they frequently suffer again from the prying questions or affirmations of judges, prosecutors or lawyers. Some even feel guilty for having lodged a complaint.
Why do I concentrate on legal procedures? Because nowadays, at least in my country, Uruguay, justice has mainly legal rather than ethical connotations. If we ask the man in the street what justice is, he will probably refer to the legal system - court, law, judges - and not good and evil. You can expect to find other approaches to justice only at a more intellectual level. And in many cases at this level, the reference is economic justice. We have referred several times during these days to the impact of the free market economy on violence.
But the etymology of justice tells us - and this not only at the street level - that justice comes from ius, and from ius we also have juridical, because in Latin ius means Law.
Changing the focus: the restorative justice perspective
The concept of restorative justice was developed to follow up and attempt to put into practice the conclusions from the criticisms mentioned above.
What is restorative justice? For John Braithwaite, for example, restorative justice means restoring victims, a more victim-centered criminal justice system, as well as restoring offenders and restoring community.
Restorative justice is an attempt to apply a holistic approach to crime, bringing together offender, victim and community and, through a process of dialogue, restore relationships within the community. Although punishment is not forgotten, it is not a central part of the process.
Different models of restorative justice have been applied overin the last 20 years: mediation, conferencing, community, and circle models are some of the ways the central intuitions of restorative justice have developed.
We can still ask: restore what? Restore implies going back to something. But back to what if the previous situation was not just? The South African Truth and Reconciliation Commission, for example, talked about restorative justice. But what was the previous just condition? Therefore, restorative justice should mean not only return to a previous just condition, but also "pro-storative", that is, to build just relationships within the community.
Theoretical background
Let me underline some key elements of restorative justice models and relate them to theological and ethical reflections.
Concern for the least advantaged members of society is expressed not only from a Christian perspective, but also by the most important current theories of justice. Professor emeritus at Harvard University, John Rawls wrote A Theory of Justice in 1971; since then, his book has become a classic of contemporary ethics and political theory. Developing further some of the ideas expressed previously in Justice as Fairness (1957), in Theory Rawls introduces two principles of justice by which society, if it adopted them, would become an ethically acceptable, just society.
The first principle states that each person has an equal right to basic liberties such as thought, conscience, etc. (the ‘liberal principle’). The second principle states that social and economic positions must be open to all, and that equal opportunity must be to the greatest benefit of the least advantaged members of society (the ‘difference principle’).
For Rawls, a just society is thus one that puts together both principles. In our liberal or neoliberal societies, the first principle is mostly granted. But what about the second principle? Are the poor people, the victims, the excluded those who obtain the ‘greatest benefit'? Therefore, while developing victim-centered processes, we are trying to work towards inclusion (and against exclusion) and we are trying also to benefit the least advantaged.
Theological and ethical thoughts have also underlined this issue. From the Christian perspective there is solidarity in sin but also solidarity in redemption. St Paul wrote in Romans 3, 23-24: "For all like have sinned, and are deprived of the divine splendour, and all are justified by God’s free grace alone, through his act of liberation in the person of Christ Jesus". And in 1 Corinthians 15, 22: "As in Adam all men die, so in Christ all will be brought to life". Original sin, justification, grace, redemption doctrines are built reflecting on these solidarity and responsibility perspectives. The scene of the meeting of Jesus with the adulterous woman (John 8) can be taken as an example of restorative justice proceedings in Jesus’ practice. Other examples can be searched in the New and in the Old Testament.
Community, solidarity and responsibility also play a key role in contemporary ethics. Two contemporary German philosophers, Frankfurt Goethe-Universität professor emeritus Karl Otto Apel and Jürgen Habermas propose what they call "Communicative Ethics or Discourse Ethics" (Apel prefers the latter term).
We can say that Apel brings together the two parts of ethics, as one of the parents of modern sociology, Max Weber, (Germany 1864-1920) stated in his conference "Politics as vocation" (1918). Weber wrote that either you act thinking about your principles, norms, values, or you act thinking about the consequences of your action. In the first case, you are following what he defined as "principle ethics". In the second, you are following what he defined as "responsibility ethics". While at the beginning of his speech, he said that these two ethics are not reconcilable, he ended by calling for an ethics that combines these two parts.
Apel’s ethics is called post-Weberian because he tried to underline both ways of human action. The cornerstone of his ethics is solidarity. He said that whenever you act, you should realize you are participating in two different communities: the "ideal communication community", and "the real communication community". Through dialogical discourse, you should look for consensus. Community orientation, dialogue between all those involved in an issue, and co-responsibility are some of the key elements of his "responsible solidarity ethics".
Many authors are reluctant to admit that the restorative justice paradigm can be used at political, economic or international levels. However, the South African Truth and Reconciliation Commission saw its work as a form of building restorative instead of retributive justice. At this level, issues such as impunity (the non-punishment of perpetrators of human rights violations and of crimes against humanity) and memory are also part of the story.
According to Glenda Wildschut, a former member of the South African Commission, divided societies have historically found six ways of grappling with the past: