Sylvia Clute

What if law and justice fostered transformation?
       How can we get there?

Bending Justice Toward Love

I am writing a new book: The Arcs: Bending Justice Toward Love. This is the Prologue that I have written for the book. It explains the urgent message that the new book delivers. 


In the book I talk about the need to be aware of the model of justice we choose. There is a connection between (a) punitive justice that teaches it is moral to harm others so long as the harm done is proportional to the harm experienced and (b) the sustained violence in the world. 


Peace in the world, protection of our environment, the elimination of deep pockets of poverty, ending systemic racism, these are all difficult to achieve so long as punitive justice is the norm—our system of justice acts as a barrier to peace and connection. The system we are immersed in does not support the outcomes we hope to achieve.


Until we have a viable alternative, punitive justice is our only choice. I have spent over 30 years working on Unitive Justice. It offers a blueprint for a parallel model of justice based on the moral principle of lovingkindness. 


Unitive justice is a locally initiated and locally owned model of justice that creates justice based on values, equality, connection, mutually beneficial outcomes, honesty, trust, co-creativity, and unity. Unitive Justice is a system that supports achieving peace and a better world for future generations. 


Justice matters and we have a choice!

 

PROLOGUE

UNITIVE JUSTICE:

BENDING THE ARC OF JUSTICE TOWARD LOVE

By Sylvia Clute

Copyright  ©  2018 by Sylvia Clute


From System Blindness to System Change


Some conditions are so pervasive that we don’t recognize they exist. It is said that fish, for example, don’t know that they live in water. They have no concept of what it is like to not be in water, so they have nothing with which water can be compared.


For many of us, the punitive model of justice is like water is to fish—pervasive and unquestioned. Where it begins and where it ends is unclear. Punitive justice is, of course, the fabric of the criminal court system, but it is also the substance of many school disciplinary rules and corporate personnel policies. It has been practiced in many households for generations.


Our understanding of justice is based largely on past experience—retribution and revenge is the only type of justice that many of us have learned. Textbooks and media sources teach us—explicitly and implicitly—that the punitive model is how justice operates, suggesting that another choice is not available. These messages are reinforced by a multitude of religious teachings that provide punitive justice with moral legitimacy, even though this requires de-emphasizing spiritual teachings based on lovingkindness, such as the Golden Rule and “love your enemies.”


Outside of television, movies and media, many of us never encounter the legal system directly. When we do, whether we are the one charged with a crime or one of the enforcers, we are unlikely to question how it operates. Like water and fish, all of our lives we swim in a punitive culture. We accept what our courts do as normal and unremarkable. Moreover, the complexity of the justice system obscures its inner workings, as do often-repeated and simplified narratives about the system, like “justice is blind,” and “the punishment fits the crime.”


If someone unfamiliar with our systems were to land on Earth and observe our culture without any preconceptions, they would see retributive justice reflected in nearly everything and everywhere. Retributive justice is a defining characteristic of Western culture. It helps explain how the West conquered the East, North and South, and how conditions like slavery, Native American genocide, segregation and now, mass incarceration, have been made legal.


How does such a system persist? A widespread condition of system blindness is necessary for it to do so. System blindness keeps us from being aware that we are embedded in a system, or understanding how it operates. Our system blindness enables us to believe that justice is good, or supposed to be good, even when our personal experience with the justice system harms us and harms others.


Our system blindness can cause us to believe that the justice system operates in one way when, in fact, it operates in another—perhaps quite differently from what we assume or have been led to believe.

When things don’t work, our mistaken assumptions can cause us to implement problem-solving strategies that make little to no difference, solutions that may solve nothing because they are not addressing how the system actually works. As we focus on repairing one part of the system to fix a particular problem, we may be blind to how that impacts the rest of the system.


Our system blindness can cause us to believe that practicing punitive justice—answering one harm with another harm—is a good way to maintain order, without realizing the enormous cost that repeatedly inflicting revenge has on the population as a whole, or the damage it does to individuals. To the extent the actual structure of retributive justice remains invisible and we unknowingly continue to act within its parameters, we may unwittingly perpetuate its negative cycles. Invariably, harm begets harm.


How do we escape our system blindness? One way is to carefully identify how the system is constructed, to analyze its parts, and how each part helps maintain the system as a whole. Analyzing the structures of our punitive justice system is what I do in Chapter One. I also suggest how we might create a parallel model of justice that has no punitive elements—what I call “Unitive Justice.”


Ultimately, our punitive system of justice may be difficult to change—impossible, even—until there is the option of a different, yet viable, model to replace it. Despite the best of intentions, many reform movements have fallen short. As they sought to put band aids on what are actually systemic problems, some attempted reforms have helped the old structure they intended to change to become bigger, not better.[1] The reforms are engulfed by the old system, and little change occurs.


Analyzing the actual structures of these two systems, part by part, seeing how each part supports the others, can help us envision system change. When we see the punitive system as a whole, we discover its weaknesses, and how it even contributes to many problems it is supposed to solve. Looking at Unitive Justice, structure by structure and as a whole, helps us begin to imagine how to create a viable, parallel model of justice—justice as Love.


This book carries an urgent message. We must pay attention to the model of justice that we believe in, the type of justice we implement and that we teach our children, for our system of justice is a central pillar that influences everything else.


We cannot create peace, save our environment, end systemic racism, or address deep pockets of poverty so long as we continue to believe retributive justice is the best system of justice possible. It is not. Punitive justice often acts as a barrier to positive change.


But we can choose to create a model of justice that does support the world we want for ourselves and future generations. It begins at the local level and is within our control—Unitive Justice. We can bend the Arc of Justice toward Love.


My Journey from There to Here


For 28 years I was a civil trial attorney, immersed in a legal system characterized by hierarchy, judgment and retribution. In the 1980s, a decade into my legal career, I realized there had to be a better way. Upon reading A Course in Miracles for the first time, I learned that there are two models of justice, vengeance and love. I immediately recognized that the justice I was offering as an attorney was justice as vengeance. This is the moment when my search for “justice as love” began.


I began reading everything that I imagined might be relevant, and I became involved in a group called “Holistic Lawyers.” This was a small band of lawyers who were all seeking a model of justice that was more just. It was good to know that I was not alone.


My journey to find answers took me to many sources. I read books on quantum physics, on alternative medicine, Jean Gebser’s epic book, The Ever-Present Origin, and parts of the New Testament. I researched Free Masonry and its influence on the founding vision for the U.S., as a nation that was, in theory, at least, to be a nation of free, equal people. Later, I began to sometimes attend a Friends Meeting (Quakers) to learn about their system for coming together in love and without judgment.


In my search, quantum physics seemed especially relevant, because a shift in our understanding of science can seed subsequent system change. I began with The Tao of Physics by Fritjof Capra, but David Bohm’s Wholeness and the Implicate Order was even more enlightening. Bohm describes how Newtonian physics supports an us-versus-them worldview, and how this led us to build institutions that embody self-interest. He also describes how quantum physics is introducing a new worldview, one in which everything is interconnected. This will require that we create institutions that embody this new understanding of reality—our interconnectedness.


To insure I left no stone unturned, I sought training in mediation and then, in Collaborative Law, a gentler form of legal representation. Both fell short of what I was seeking—they were both modifications of the present system, not the system change that I was seeking.


I began to understand that, if it is to be based on love, the new model of justice must be free of all punitive elements. Once I recognized this possibility, the structures of two completely different models of justice began to take shape in my mind. I began to see two distinct systems, one that was hierarchical, judgmental and punitive and one that had none of these elements. In their purest theoretical application, they are mutually exclusive systems; where one is present, the other is not. One is punitive, the other unitive.


Eventually, a theory began to emerge in which certain structures that consistently appear in a punitive system are described, and then compared to corresponding non-punitive structures that might replace those punitive structures. This provides a map for the transition from punitive systems to unitive systems.


As I came to understand better the structures of punitive justice and I compared them to a non-punitive model, it became harder for me to walk into a courtroom. I stopped practicing law in 2003 and returned to school. By then, I could see the structures of a new system, but I could not yet see how to implement them—what would justice as love look like in practice? While I felt I could no longer practice law, I had not yet found a way to live into the new system I envisioned.


Throughout this time, the search had continued for others, as well. The holistic law group disbanded, but eventually the seeds of its inspiration grew into the global Integrative Law movement. This growing movement is composed of many lawyers, judges, law school faculty and citizens seeking to transform the western legal system.[2] I reference the work of several of these visionaries later in this book.


Around 2007, I became aware of Restorative Justice. When at its best, this model uses the energy around conflict to promote healing and transformation, while achieving accountability, preserving dignity and affirming agency.[3] I was encouraged by what I saw, but the early restorative justice processes grew out of the criminal courts. To a greater or lesser extent, the models I encountered still retained some punitive elements.


Then, a breakthrough came in 2010 when I discovered Dominic Barter’s particular model of Restorative Justice, called Restorative Circles (more information is at www.RestorativeCircles.org). Barter had no prior connection to the courts and his circle process is free of punitive elements—it provides a non-hierarchical, non-judgmental and non-punitive way to address conflict.


I saw what Barter offered as one way to implement in practice the theory of Unitive Justice that I was envisioning. Using Unitive Justice theory to explain the system, while using Restorative Circles to experience it, provided the opportunity to put many pieces of the puzzle together at once.


A Return to Eden?


When I began to experience the Restorative Circle process, there were times when it seemed like something miraculous happened, unlike anything I ever experienced in a courtroom. Those who came together in conflict recognized their shared humanity, and that permitted them to go forward together. In those moments, I recognized the Unitive Justice structures that I envisioned were present. Repeatedly having this experience further deepened my understanding of justice as love.


Eventually, it became apparent that being present to our shared humanity and justice as love are integrally linked. I am confident that we can experience our shared humanity and justice as love without pain being the catalysis, but now that seems to happen infrequently. Until other means are developed, we can use the pearl in conflict that waits to be harvested—as we are led through our pain with others who are also in pain, we discover our shared humanity. When present to one another at that level, only justice as love is applicable.


It is in simultaneously recognizing the humanity of another, while experiencing one’s own humanity, that the door to justice as love is opened. Justice as love is seeing the humanity in others and in ourselves as an end in itself—without asking how do I impose control, get retribution or what is in it for me?


Lest I sound like I idealize what circles can deliver, I’ll clarify that not every circle gets to the level of our shared humanity. In part, it is difficult to recognize our shared humanity because we have become so disconnected from one another. We have established boundaries of control and privilege that make it difficult for us to truly see or hear one another.


Our deep-seated belief in separation—in us versus them, good versus evil—keeps us alienated, one from the other, and the resulting brutality convinces us that our illusions of duality are real. But now, Newtonian physics confirms what sages like Krishna, Buddha and Christ taught centuries ago—we are, in fact, connected in a field of energy in which separation does not exist. What we do to others, we do to ourselves.


Perhaps our belief in duality is the metaphorical eating of the “fruit of the tree of knowledge of good and evil” described in Genesis, the “sin” of separation that turned us out of the Garden of Eden and away from what it means to be fully human.[4] One might mistakenly think that the control separation can give us over others will give us god-like control, as the serpent promised Eve[5] before she ate the forbidden fruit. Instead, it merely destroys our ability to experience our shared humanity.


The good news is that knowledge of our fundamental nature was not lost, it remains within us, even if dormant. Once again recognizing our shared humanity is remembering what it is to be human, and when conditions are right, we easily remember. We can do this.


Remembering this connection extinguishes the desire for retribution or getting even. When connected on this level, we naturally commit to doing no harm toward what, in that moment, we see is fragile and precious, whether the person has done egregious harm or it is someone we know to be a good person at heart. Race, gender, sexual orientation, religious belief, ethnicity and cultural background all become irrelevant when present to the humanity that is who we are—what we all have in common.


When a new Unitive Justice system is being created, in the beginning, perhaps few of our circles will approach this level of connection, but the outcome may still be an improvement on what the punitive system delivers. The skills needed to reconnect at the level of our shared humanity are being intentionally developed among those who share a vision of justice as love. If someone has caused serious harm, it might take a year or more of preparation before engaging in a circle process with that person, but this extended process is now offered by multiple restorative justice service providers.


For me personally, this new understanding affirms that a parallel model of justice can intentionally be created, and that it is a powerful, transformative option. Many details are yet to be defined, but one detail that seems clear is that its implementation on a broad scale will be bottom up. Unitive Justice might begin in a home, or in a classroom. It might begin in a community that is so broken it is desperate for change.


The main catalyst for applying Unitive Justice widely is for citizens to create Unitive Justice systems locally, and then choose to use them instead of resorting to the courts, school suspensions and expulsions, spankings and shaming. As citizens opt in to Unitive Justice, before their conflicts escalate to the point of calling the police and court intervention, the new structures will grow. Simultaneously, as citizens opt out of the courts because they have a viable alternative, the courts will diminish in importance.


The opportunities I have had to test Unitive Justice theory in practice indicate it works as intended. But I recognize that Unitive Justice is a work in progress, that it will continue to evolve as others bring their experience and insight to its design and implementation. What I offer in this book reflects the best I have encountered and the lessons I have learned so far.


And it is now apparent that the unitive approach is not limited to justice—it can be implemented in other institutions, as well. A small group is working to extend unitive structures to education and to business, beyond merely addressing conflicts. We are considering other fields that can implement these structures to achieve a greater good—perhaps in politics, the economy, and in religious practices. The unitive system will need to be calibrated to fit the conditions of the particular application, but the overall vision appears to apply widely.


We are on the stage at a unique moment in human history—the system is primed for systemic change. If justice as love is to happen, it is now up to us to manifest it. Change begins with the desire for change. It is my hope that The Arcs: How to Bend Justice Toward Love contributes to your desire for justice and love to be seen as one in the same, and implemented now, during your lifetime and mine. As Stéphane Hessel wrote in his compelling work, Indignez-Vous!, “You join the movement of history, and the great current of history continues to flow only thanks to each and every one of us.”


We are pioneers embarking on a new frontier.

* * * * * 


[1] See Dana Greene, “Repeat Performance: Is Restorative Justice Another Good Reform Gone Bad?,” Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice, 16:3, 359-390, (2013), DOI: 10.1080/10282580.2013.828912, http://dx.doi.org/10.1080/10282580.2013.828912.

[2] A number of books have been published recently on this topic. A Resources section will be provided at the end of the book.

[3] It was only when I began reading material on Restorative Justice that I became aware of the intersection between my work and Native American and African sources. Having arrived at a similar place using very different sources demonstrates that the truth is true and there are different paths to discovering it.

[4] In Jewish and Christian theology, the fall of Adam and Eve (and all subsequent humans) was caused by them eating the “fruit of the tree of knowledge of good and evil.” (Genesis 2-3; emphasis added). Eating the forbidden fruit expelled them from the Garden of Eden. However, as God told Adam and Eve they could eat the fruit of every tree that yielded fruit that had seeds, (Genesis 1:27–29), this can be read to mean that the forbidden fruit was not actual fruit—be it an apple or a pomegranate—but taking on the “knowledge” (belief in) good and evil. Indeed, the belief in separation, as in the belief in good versus evil and us versus them, destroys human connection, undermines our peace and harmony, and makes any semblance of Eden impossible.

[5] “And the serpent said unto the woman, Ye shall not surely die: For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.” Genesis 3: 5-6 KJV