Sylvia Clute

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

Bending Justice Toward Love

I am writing a new book: Unitive Justice: Bending the Arc of Justice Toward Love. The first chapter introduces the reader to an urgent message about justice system change. 


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, self-governance, 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!

 

My next book has been in the works for about 5 or 6 years, and finally its publication is coming soon. Here is a sample of how it begins.


UNITIVE JUSTICE:

BENDING THE ARC OF JUSTICE TOWARD LOVE

By Sylvia Clute

Copyright  ©  2020 by Sylvia Clute


Chapter One: 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 exist in something other than 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. Common sayings, such as “spare the rod, spoil the child,” implicitly tell us punitive justice is the best way.


Our understanding of justice is based largely on our experience, past and present—retribution and revenge is the only type of justice that many of us have learned and know how to apply. 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 teachings, both religious and secular, 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.”


Occasionally, however, we catch a glimpse of a different way—a different model of dealing with harm that involves loving unconditionally those who caused the harm. We might stand in awe of the generosity of spirit this requires, but question our own ability to act with such love and grace should we, God forbid, have the same experience. This is not the model of justice that we learned.


Many of us do not have direct contact with our legal system. Some experience how traffic violations or civil actions are handled in court and some do jury duty. Most of us get our knowledge of the legal system from television, movies and the Internet. The criminal justice system, fortunately, is outside the experience of most and those who experience this system of punitive justice might feel it does more harm than good. They might learn only that justice means punishment. Regardless, most of us —even those who work in the system—rarely question how the legal system operates.

 

Like fish in water, we live in a punitive culture that we do not even realize we are in. We accept our laws, those who enforce them, and what our courts do as “normal.” 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.” We often practice punitive justice without even realizing this is what we are doing.

 

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 is a system that enabled Western nations to conquer the East, North and South, and how conditions like slavery, Native American genocide, segregation and now, mass incarceration, are made legal.

 

How does such a system persist? A widespread condition of system blindness must exist for it to do so. System blindness keeps us from being aware of how embedded we are in the system or understanding how it operates. 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 are led to believe.

 

When things don’t work, our mistaken assumptions might 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 and leave its worst flaws unaddressed. 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. We might permit it to expand its reach when our intention was to reduce its impact.[1]

 

What’s more, many forces lead us to accept harm answering harm in proportion to the harm done—proportional revenge—as the only effective way to address crime. Without critical analysis, most of us believe it is ethical to do harm to a person who committed a crime because we assume the punishment is in proportion to the crime committed. There is little public consideration of how the legislators measure proportionality.[2] Most of us go our whole lives without giving this system much thought and believing that it works despite all of the evidence to the contrary.

 

Our system blindness often causes 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? Through awareness. We must carefully identify how the system is constructed and to analyze its parts and how each part helps maintain the system as a whole. In Chapter Four I analyze the structures of our punitive justice system. I also set out how we might create a parallel model of justice that has no punitive elements—a system of justice I call “Unitive Justice.”

 

When we clearly see how punitive justice operates, many of us will demand change. But, despite the best of intentions, many reform movements have fallen short.[3] Demands for reform will continue to fall short until we have a concrete plan for a viable alternative.


In this book, I discuss the current justice system and its punitive elements. When we see the punitive system as a whole, we discover its weaknesses, and how it even contributes to problems it is supposed to solve. Then I describe how to eliminate the punitive elements by looking at Unitive Justice, part by part, and as a whole. With this, we begin to imagine how to create a viable, parallel model of justice—justice as Love.[4]  


This book carries an urgent message. 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. In fact, it is a barrier to positive objectives that many of us desire to achieve. We can instead choose to create a model of justice that does support the world we want for ourselves and future generations—Unitive Justice.

 

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. I was idealistic when I began practicing law, thinking I could help insure “justice for all.” Instead, what I encountered was a system that, even when my clients won their cases, it provided little healing. I represented plaintiffs, and on a number of occasions my clients said to me, “I would let this go if he would just apologize,” but the system discourages apologies by making them a fast way to lose. And when a client lost because of a technicality or a bias the judge held, it in no way resembled the justice that I was willing to fight for. In the 1980s, a decade into my legal career, I realized there had to be a better way.

 

In 1987, upon reading A Course in Miracles for the first time, I learned something I had not previously considered: there are two models of justice, vengeance and love. I immediately recognized that the justice I helped my clients achieve was justice as vengeance. This is the moment when my search for “justice as Love” began.

 

I already had many questions about the system I was part of and was eager to look for something different. In my search for answers, I read everything that I imagined might be relevant. I also joined a group called “Holistic Lawyers,” a small band of lawyers who were also seeking a model of justice that was more just. It was good to know that I was not alone and to see how others were treading this pioneering path. 


In my search for better answers, I researched a variety of compelling resources, some which may seem unrelated to justice. For example, 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 explored Free Masonry and its influence on the founding vision for the U.S. as a nation, in theory at least, of free, equal people. Later, I began to attend some Friends Meetings (Quakers) to learn about their system for coming together in love and without judgment.


I was surprised to find quantum physics especially relevant in that 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 concluded that matter is the basic building block for everything. Because of the materialism this approach to science fosters, it supports a belief that separation is real, an essential belief in the us-versus-them worldview of punitive justice. Believing separation is real and connection is not led us to build institutions that embody self-interest and materialism, a zero sum environment in which my gain necessarily means your loss.


Bohm explains how quantum physics is introducing a new worldview because a deeper level of reality exists—we are all connected in a field of energy and separation does not exist. If we acknowledge a world based fundamentally on interconnectedness, this requires us to create institutions that embody this new understanding of reality—and to dismantle the old.


To continue my research and leave no stone unturned, I did some training in mediation. I also gained an understanding of Collaborative Law, a gentler form of legal representation where the parties work with each other instead of against each other. While mediation can be helpful and Collaborative Law is a step in the right direction, both were modifications of the present system, not the system change that I began to see is necessary—and inevitable.


From all of this research, I began to understand that an entirely new system is necessary—and possible. If the new model of justice is to be based on Love rather than revenge and punishment, it must be free of all punitive elements. Once I recognized this, I began to see the structures of two completely distinct models of justice: the hierarchical, judgmental and punitive system that we currently have and one that has none of these elements. In their purest theoretical applications, these are mutually exclusive systems of justice; where one is present, the other is not. One is punitive, the other unitive.


When I began to question how the legal system addressed conflict, I also began to question my role as an attorney. In law school I was told we had the best legal system that man could devise, but in my legal practice I could not accept that assertion. Whether in a case involving divorce, medical malpractice, breach of contract or sexual abuse, clients came to me with broken relationships, and nothing I was trained to do was aimed at healing the breach. I was taught to see that my clients won by making the other side lose. I practiced on the civil law side of the court; on the criminal law side, I believe the breakdown fostered by the system is even worse.

 

As I came to better understand the structures of punitive justice and compared them to a non-punitive model, it became harder and harder for me to walk into a courtroom. As a result, 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 justice as Love—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 bring the new system I envisioned to life.

 

Throughout this time, the search had continued for others, as well. The holistic law group mentioned above 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.[5] 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 at the same time achieving accountability, preserving dignity and affirming the individual agency of those in the conflict to resolve their dispute themselves.[6] I was encouraged by what I saw, but I felt that most early Restorative Justice practices that grew out of the criminal courts retained some elements of the punitive system.

 

Then, a breakthrough came in 2010 when I discovered Dominic Barter’s particular model of 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. This is what I had been looking for!

 

My first opportunity to experience Unitive Justice at work was in implementing a restorative justice program at a troubled high school in Richmond, Virginia from 2011 to 2013. I facilitated circles, taught a few students how to facilitate circles and shared my theory of Unitive Justice in an elective class that I taught. I saw the culture change that the unitive approach creates, change that is reflected in the peer-reviewed research completed on the school program.[7]

 

We might assume that people who commit a crime, or break a school rule, do so because they are “bad” people who must be punished to secure their compliance. On the contrary, most of the students I interacted with wanted to “stand for justice, wage peace and impact the world.”[8] I did not encounter a single student at that school who I felt was a “bad” person, though a few were definitely challenging. When the circle process offered a space for them to rise to the occasion they did so, and sometimes when I least expected it, they were magnificent. It was the invitation without pre-judgment and the space in which it was safe to be honest, vulnerable and open to new possibilities that made this possible.

 

When I began to experience the Restorative Circle process, there were times when it seemed like something out of the ordinary happened, unlike anything I ever experienced in a courtroom. The paradox of conflict comes to light: conflict provides the catalyst for an awakening that leads to a new opportunities and to more harmonious connections—if we have the tools to seize this opportunity. When those who come together in conflict recognize their shared humanity, that permits them to see possibilities they cannot see when they want revenge—from this new perspective they can go forward together. In those moments, I recognize the Unitive Justice structures I write about are actually present. As I repeatedly have this experience, it further deepens 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, justice as Love becomes the option we want to choose.

 

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 little support for connection at that level. 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 in some way comes back to us.


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. It can even begin in a prison pod.[9]

 

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. What I offer in this book reflects the best I have encountered and the lessons I have learned so far about justice as Love.


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 up to us to manifest it.


[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] See Alice Ristroph, Proportionality as a Principle of Limited Government, 55 Duke L.J. (2005).

[3] Greene, supra note 1.

[4]  “Love” is capitalized in this book to indicate the expression of this emotion at the level of our shared humanity—the benevolent concern for others that approximates concern for oneself. This is intended to distinguish it from its use to mean feelings or activities such as personal intimacy, sexual relations or affection for material objects.

[5] See Kim J. Wright’s website at https://www.cuttingedgelaw.com/page/integrative-law-movement-introduction. A number of books about the Integrative Law movement are referenced in the Appendix.

[6] It was only when I began reading material on Restorative Justice that I became aware of the intersection between my work and indigenous sources. Before that, I did not consider that possibility. When such diverse sources arrive at similar conclusions, it may be evidence that the truth is true and there are different paths to discovering it.

[7] See Lilyana Ortega, Examining Restorative Circles in a School Setting: Towards an Understanding of Participant Experiences and Perceptions (Aug. 16, 2014) (unpublished Ph.D. dissertation, University of Illinois at Urbana-Champaign) (on file with the Illinois Digital Environment for Access to Learning and Scholarship, University of Illinois) (reporting on the results of the study, which can also be found in other journal articles of the same title).

[8] Restorative justice curricula are making their way into high schools. An example is the Peace and Justice Academy in Pasadena, Calif., a high school devoted to preparing students to “stand for justice, wage peace and impact the world,” http://www.thepeaceacademy.org/Mission.aspx (last visited Mar. 3, 2020).

[9] Cite upcoming law review article.