There are a couple of channels on cable TV which specialize in police investigation shows. The shows usually begin with a grisly murder and then follow the police investigation until they discover the most likely suspect. The rest of the show is devoted to the trial and sentencing. A common element of the sentencing portion of the show is the statement of the relatives of the victim. At least 95% of the relatives ask for the death penalty to be imposed. Their loved one was killed, and the perpetrator of that death deserves the same. They state that they want justice for their loved one.
When I listen to these statements, I appreciate the pain that is producing the demand for justice. The question that comes to mind is whether it is justice or revenge that is being requested. I also wonder about the place of forgiveness. As Christians we are called to forgive seventy times seven but what about justice? Does forgiveness eliminate the demands of justice?
At the most fundamental level justice involves everyone receiving what they deserve. If they deserve to be rewarded, then justice demands that they receive the reward that is due to them. If they deserve punishment, then justice demands that they be punished. Think of an invisible scale. On one side of the scale is a weight that represents our actions and on the other side is the reward or punishment that is due to the person. The reward or punishment must be proportionate to the action, if it is to be just.
Determining what is proportionate in a particular situation can vary widely from culture to culture or even from one century to the next in the same society. For example, two hundred years ago a common punishment for theft was death. Historical records show that in England a few centuries ago capital punishment was common for offenses that today would get you probation.
In a similar manner, the Kingdom of Brunei, which is largely an Islamic nation, recently established sharia law as the basis for their civil law. So, someone arrested for homosexual behavior could be tried and sentenced to death by stoning, if found guilty. A thief would have his or her hand amputated. In this context, such a punishment is felt to be justice. The punishment is not as severe as it would have been in England a few centuries ago but is still rather severe in the context of contemporary Western values.
In Western societies justice us usually considered from a philosophical or a procedural perspective. The philosophical perspective focuses on what principles should serve as the foundation for our understanding of justice. The procedural perspective focuses on the practical mechanics of how we attempt to ensure that justice is done in our society. Debates in legislatures often are philosophical debates over the nature of justice. The actions of the legal system emphasize the procedural perspective of justice.
Another perspective on justice is the proper balance of rights and responsibilities in a community. Everyone enjoys certain rights, such as life, liberty, respect for personhood and those rights contained in the Constitution or established as generally accepted human rights by the broader society. Those rights are balanced by various responsibilities; obeying the law, paying your taxes, doing no harm to others. If someone holds a leadership role in a community, he or she may enjoy some rights not afforded to others, but that person has those rights only to carry out the related responsibilities that he or she has been given. It is unjust from this perspective to benefit oneself from the rights that he or she has the authority to exercise but fail to meet one’s responsibilities.
Under the mixed influence of Roman and Barbarian law, as well as Christianity and the European legal and ethical tradition, Western society tends to see justice coming in two flavors: restorative and retributive.
Restorative justice sees the balance being restored when what was taken away is returned. If the original object is gone then its equivalent value needs to be restored. If someone steals your car, they must return the car to you in the same condition it was at the time it was taken. If the thief destroyed the car while it was in his possession, then the thief needs to provide you with another car of equivalent value, or at least the money necessary for you to purchase a car of equivalent value.
Restorative justice is much more complicated if someone is injured or killed. Western societies tend to reduce restorative justice in these cases to a dollar value. If someone is injured or killed in a traffic accident the person responsible for the accident is responsible to provide some type of reparations for the loss of limb or loss of life. Therefore, we have insurance policies.
When it comes to murder, the victim’s family has little recourse for restorative justice except through the civil courts. The civil trial of OJ Simpson is an example of this. Criminal trials focus primarily on the guilt or innocence of the accused and what punishment is to be imposed. Some cultures provide for a form of restorative justice even in criminal cases, where the accused becomes obligated to provide for the family of the victim.
Retributive justice at its best is meant to be a deterrent from future crime. Sanctions arising from retributive justice tend to be severe. In committing a crime, a person is attacking not only the individual victim of the crime but the broader society. Order is necessary for a society to endure. People need to be secure in their expectations that they can trust one another. Otherwise, society descends into chaos. Thus, sentences arising from the context of retributive justice are meant not only to punish the perpetrator for his or her offense but to be so onerous that the perpetrator, or anyone else, won’t attempt to repeat the offense in the future; that is, there is an element of deterrence in retributive justice.