ANCIENT PRACTICES OF RESTORATIVE JUSTICE

May 24, 2017
Posted in Blog
May 24, 2017 Editor

ANCIENT PRACTICES OF RESTORATIVE JUSTICE

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7th International CURE Conference on Human Rights & Prison Reform
April 25-29, Alajuela San Jose, Costa Rica

by Bruno van der Maat

WN: It was great having spent time at the Conference with Bruno van der Maat, Senior Professor, Director of Master Studies, Universidad Católica de Santa María Graduate School, Arequipa, Peru. He is a very gentle, thoughtful person.

Below is the paper he presented at the Conference noted above. A  PDF version may be clicked on at the end of the article. You may also click on Restorative Justice: Rebirth of an Ancient Practice fora paper I wrote in 1994. I expand considerably on this in my Justice That Transforms book series.

ANCIENT PRACTICES OF RESTORATIVE JUSTICE

After many decades as a volunteer in prison work, I am now more convinced than ever that our system does not work. It is even counterproductive. Any education or health system with a record similar to the tragic results of the prison system would have been disbanded a long time ago. How is it possible that a system produces exactly the contrary of what it was supposed to do?

The Mandela Rules state in Rule 4 that “The purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

In principle, this rule seems evident. In practice however, if we see the results of our system on recidivism, for example, we are still far away from its aim.

I think one of the reasons of the poor results of our prison systems is the inadequate concept of justice. In the following investigation I will present some alternatives ways to conceive justice. To this purpose I found a source of inspiration in Ancient Mesopotamian, Egyptian and Hittite law and practice.

  1. CHANGING OUR CONCEPTS OF JUSTICE

The classical approach, led by Aristotle, states that the Law is just. Aristotle considered that the law necessarily had to be just, as it was discussed and promoted by the polis (well, actually by the free men of the polis). Consequently, for him, the law had to be just. However, we all know that the process of law making in our countries does not guarantee that the upcoming laws really are just.

Another problem is that our justice system works as – what economists call – a zero sum game. That means that what one earns, is what the other party has to come up with. The loss of one is the gain of the other. This may seem just at first glance, but it also means that the one who loses will probably try to reverse the result and appeal to recover what he has lost. The justice system designs a winner and a loser. But this does not necessarily mean that the game is over for all parties.

A third point is that our justice system is led by three main actors: judges, prosecutors and lawyers. The victim and the offender practically have no say in the process. The judgment depends on the three aforementioned people. That way, judgment is in the hands of professionals, but the victim and the offender seem to be secondary actors. The community where the offence has been committed is another absentee. However, how can we imagine solving a problem that occurred between a victim and the offender in a community, if neither of all three is called in during the judgment? Is that considered just?

  1. ANCIENT DEFINITIONS OF JUSTICE

I think we have to reconsider our concept of justice, as presented above. I found some inspiration in ancient justice systems of the Near East. Trying to find the oldest definitions of justice, I discovered this one, by king Enmetana of Lagash (an old city state in Mesopotamia). Some 4 millennia ago (ca. 2425 BCE) he said of himself:

“He (Enmetana) cancelled obligations for Lagash, having mother restored to child and child restored to mother. He cancelled obligations regarding interest-bearing grain loans.”  VEENHOF (2003:143)

The king cancelled the loans because people could not pay them back. Consequently, they were enslaved till they paid back their dues. This enslavement separated the families. For Enmetana, it was more important to reunite the families than to demand the reimbursement of the loans. Later kings had a similar way of acting (VAN DER MAAT 2015:38) I wonder whether today a judge would take the same decision.

A couple of centuries later, the king of Ur (southern Mesopotamia) defined his mode of practicing justice in the following way:

I did not abandon the orphan to the rich man. I did not abandon the widow to the powerful man. I did (not) abandon the 1-shekel man to the 1-mina man. I did not abandon the 1-sheep man to the 1-ox man.”  Laws of Ur-Namma in: KITCHEN (2012:71 parr.162.1.).

This means that he did not only consider every person that came to him for justice in the same way, but that he was aware of the comparative handicap that a poor or destitute person had in a judgment against a powerful one. He took this handicap into account in order to re-establish the balance.

Mesopotamians had two different concepts of justice: Kittum and Misarum (CHARPIN, Dominique 2000: 89). On the one hand, “Kittum” considered justice as the order that had to be preserved. So, for example, loans had to be repaid, otherwise chaos would surge. On the other hand, “Misarum” conceived justice as the restoration of equity. This meant that social harmony was the goal, or social peace, as we would call it nowadays. Kittum and Missarum were always mentioned in this order, with Missarum the ultimate reference.

Still looking for the definition of justice that could help us to reconsider our own concept, I found what I consider the very best definition of justice I ever found. I first thought it was an hapax, but later on I found the same formula in other references. It seems to have been a usual definition in the tombs of judges, written on the wall so they could remember it when their own final judgment came.

Thotnakht-ánkh, a judge from the 11th Dynasty, around the 20 th century BCE, confesses that:

I have accomplished Ma’at during my whole career (…) I have judged according to Ma’at in such a way that both parties walked away with a peaceful heart.” MENU (2005:80) [see also ANTHES 1928:28-29 in KARENGA 2004:255 and ASSMANN 1989: 333-334]

Ma’at was the goddess of judgment and harmony (represented with an ostrich plume on her head).  She was the guarantee of order. Judging according to Ma’at meant restoring harmony that had been broken by the offense. Ancient Egypt did not seem to have written codes. The idea of justice was to heal the wounds inflicted on the community by restoring Ma’at, in order to evict Ifset (chaos).

What I highlight in this definition of justice is that both parties walked away with a peaceful heart. How many judgments today achieve this? To restore peace in the community, this is exactly what justice is about. Justice is not about sending people to prison, but about rebuilding a peaceful community.

Trying to summarize, one could state that Ancient Justice is primarily related to establishing or restoring social harmony rather than (just) applying the law. This is not achieved when the law has determined the winner and the loser, but when all parties are reconciled with one another. For this, it is necessary to recognize that a dispute between two parties reaches far across their own interests and affects the community.

  1. SUBSIDIARY LAWS

Our conception that justice means the application of the law is contrary to a Hittite case, where the victim could override the judiciary system and spare the perpetrators (VAN DER MAAT 2015:66-80). This was the case when a man found his wife with a lover. The law stated that both (woman and lover) had to be killed. However, the man could spare his wife (and her lover), overriding the law. Even the king (the supreme judge) had to respect the will of the victim.

In a certain way, the offenders were at the mercy of the victim, who could decide to apply the law (death penalty) or show mercy. But the victim could not demand a tougher punishment than what the law had foreseen.

The Middle Assyrian Law presents similar cases (VAN DER MAAT 2015: 80-87). I think that this case of the subsidiarity of the law and of the justice system can help us to conceive our justice in another way. The victim has something to say in the process. How many times does it occur that the victim is not interested in having the offender shut up in a prison, because that does not help him to recover his peace. Restorative Justice is just about restoring peace, with the help of victim, the offender, and the community. If the judiciary system is considered subsidiary, then the justice officials (judge, prosecutor, lawyers) can help to guarantee a fair judiciary process where the victim and the offender can work out a satisfactory solution, together with the community.

  1. COMPENSATION

Our criminal justice system usually determines who is the victimizer, and who the victim; the offender is then sent to prison and the victim can go back home. If the victim wants to get back what has been taken from him, he usually has to start another (civil) procedure. This means that our system considers that justice is done when the offender has been identified and sentenced.

Usually a victim does not get back what has been taken from him. In ancient justice systems, that would have been considered unjust. A just compensation was foreseen in case of an offense. The Hittite laws stated:

If anyone injures a person and temporarily incapacitates him, he shall provide medical care for him. In his place he shall provide a person to work on his estate until he recovers. When he recovers, his assailant shall pay him 6 shekels of silver and shall pay the physician’s fee as well.” Hittite Law 9 [ROTH (1995:218); FRIEDRICH (1959:19)]

This law foresees a compensation for the victim. Justice is attained, not by sending the offender to prison, but by making him (re)pay for what he has done. He has to compensate not only the medical recovery of the victim, but he also has to pay for the replacement of the victim in his work. The victim’s family cannot wait till the victim has recovered, so someone must replace the victim in his work, in order that the family can go on living. This compensation is vital, and does not exist in our justice systems, at least not without another judiciary procedure. In this case, if he receives this kind of compensation, the victim will probably agree on the sentence and the community will go on in harmony.

A similar case can be found in another source, of much later date, namely the Babylon Talmud. This states that one who wounds his neighbour is liable to pay the following five things, viz.: damage, pain, healing, loss of time, and disgrace. Each item has its explanation:

“Damage: If he blinds one’s eye, cuts off his hand, or breaks his leg, the injured person is considered as if he were a slave sold in the market, and he is appraised at his former and his present value.

 Pain: If he burns him with a spit or with a nail, if even only on the nail (of his hand or foot), where it produces no wound, it is appraised how much a man his equal would take to suffer such pain.

Healing: If he caused him bodily injury, he must heal him; if pus (appears) collected by reason of the wound, he must cause him to be healed; if, however, not by reason of the wound, he is free. If the wound heals up and breaks out again, even several times, he must cause it to be healed; if, however, it once heals up thoroughly, he is no more obliged to heal it.

Loss of time: The injured person is considered as if were a watchman of a pumpkin field, as he was already paid the value of his hand or foot.

The disgrace is appraised with consideration of the station and rank of the one who causes as well as of the one who suffers it. ” [Talmud Babli – Baba Qama VIII]

This is another way of calculating the compensation due after an offense has been committed. These examples can help us to consider other ways than just prison sentences and money to compensate a victim and restore justice.

CONCLUSION

I have tried to shed new light on our justice system by using (very) ancient practices, from some millennia ago in Mesopotamian, Egyptian and Hittite contexts. These examples are not given here to be copied, but to inspire us in our quest for a more human, efficient and affordable justice.

BIBLIOGRAPHY

ASSMANN, Jan (1989) Maât. L’Égypte pharaonique et l’idée de justice sociale, Paris : Julliard. Conférences et leçons du Collège de France.

CHARPIN, Dominique (2000) “ Lettres et procès paléo-babyloniens” in: JOANNÈS, Francis (Dir) (2000) Rendre la justice en Mésopotamie. Archives judiciaires du Proche-Orient ancien (IIIe – Ier millénaires avant J.-C.), Saint Denis : Presses Universitaires de Vincennes.  p. 69-111

FRIEDRICH, Johannes (1959) Die Hethitischen Gesetze, Leiden: E.J. Brill.

KARENGA, Maulana (2004) MAAT. The Moral Ideal in Ancient Egypt. A study in Classical African Ethics, New York- London: Routledge.

KITCHEN, Kenneth A.; LAWRENCE, Paul J.N. (2012) Treaty, Law and Covenant in the Ancient Near East. Part I. The Texts, Wiesbaden, Harrassowitz Verlag.

MENU, Bernadette (2005) Maât. L’ordre juste du monde, Paris : Michalon.

ROTH, Martha T. (1995) Law Collections from Mesopotamia and Asia Minor, Atlanta: Scholars Press.

TALMUD BABLI http://www.sacred-texts.com/jud/t05/kam04.htm

VAN DER MAAT, Bruno (2015) Ancient Practices for a New Justice, Arequipa: Universidad Católica de Santa María.

VEENHOF, Klaas R. (2003) “Before Hammurabi of Babylon” in: FELDBRUGGE, F.I.M. [Ed] (2003) The Laws Beginnings, Leiden – Boston: Martinus Nijhoff Publishers. p. 137-159.

Please click on: ANCIENT PRACTICES OF RESTORATIVE JUSTICE

  1. [1]Please look at several articles as well on American/Western will to world domination by clicking on "Selected Articles: Western Aggression Backed by Western Media”. The series of articles is introduced thus:
    The Western allies never run dry of resources to support their global war of terror and aggression, ostensibly an integral part of their foreign policy. They dynamically legislate laws lest the people awaken. They have the unbending support of the corporate media, which skilfully distorts reality. When will they ever back down from their destructive quest for colonies? Read our selection below.
  2. [2]It continued:
    ‘For seven months, Tiger Force soldiers moved across the Central Highlands, killing scores of unarmed civilians – in some cases torturing and mutilating them - in a spate of violence never revealed to the American public,’ the newspaper said, at other points describing the killing of hundreds of unarmed civilians. ‘Women and children were intentionally blown up in underground bunkers,’ The Blade said. ‘Elderly farmers were shot as they toiled in the fields. Prisoners were tortured and executed - their ears and scalps severed for souvenirs. One soldier kicked out the teeth of executed civilians for their gold fillings.”   The New York Times confirmed the claimed accuracy of the stories by contacting several of those interviewed.  It reported: “But they wanted to make another point: that Tiger Force had not been a ‘rogue’ unit. Its members had done only what they were told, and their superiors knew what they were doing. “Burning huts and villages, shooting civilians and throwing grenades into protective shelters were common tactics for American ground forces throughout Vietnam, they said. That contention is backed up by accounts of journalists, historians and disillusioned troops… ‘Vietnam was an atrocity from the get-go,’ [one veteran] said in a recent telephone interview. ‘It was that kind of war, a frontless war of great frustration. There were hundreds of My Lais. You got your card punched by the numbers of bodies you counted.’ Current likely Democratic Presidential candidate John Kerry was also quoted giving evidence before the Senate Foreign Relations Committee in 1971.  He reported that American soldiers in Vietnam had “raped, cut off heads, taped wires from portable telephones to human genitals and turned up the power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks and generally ravaged the countryside of South Vietnam in addition to the normal ravage of war, and the normal and very particular ravaging which is done by the applied bombing power of this country. Nicholas Turse [later author of: Kill Anything That Moves: The Real American War in Vietnam], a doctoral candidate at Columbia University, has been studying government archives and said they were filled with accounts of similar atrocities. ''I stumbled across the incidents The Blade reported,'' Mr. Turse said by telephone. ''I read through that case a year, year and a half ago, and it really didn't stand out. There was nothing that made it stand out from anything else. That's the scary thing. It was just one of hundreds.'' Yet there were few prosecutions.
  3. [3]Historian John Coatsworth in The Cambridge History of the Cold War noted:
    Between 1960, by which time the Soviets had dismantled Stalin's gulags, and the Soviet collapse in 1990, the numbers of political prisoners, torture victims, and executions of nonviolent political dissenters in Latin America vastly exceeded those of the Soviet Union and its East European satellites. In other words, from 1960 to 1990, the Soviet bloc as a whole was less repressive, measured in terms of human victims, than many individual Latin American countries [under direct sway of US Empire] ("The Cold War in Central America", pp. 216 - 221).
    What was true for Latin America was true for around the world: massive human rights abuses, assassinations, regime changes of democratically elected governments, etc., etc., etc. orchestrated by US Empire. Yet Americans invariably have wanted it both ways: to be seen as the exemplary "City on A Hill" that upholds universal human rights and democracy, while operating a brutal Empire directly contrary to all such elevated values, and a concomitant rapacious Empire market economy that takes no prisoners. This began of course even before the founding of the United States of America and continued apace, in its mass slaughter and dispossession of indigenous peoples, in its brutal system of slavery on which its obscene wealth in the textile industry in the first place was built. "The Land of the Free" conceit was a sustained con job on the part of America's leaders. It was also apotheosis of hypocrisy. American exceptionalism was/is true in one respect only: it was brutal like no other Empire in its eventual global reach.
  4. [5]
  5. [4] The highlighted article about renowned whistle-blower Daniel Ellsberg points to again what is utterly chilling, horror-filled, exponentially beyond immoral, American (hence the world's) reality: "Daniel Ellsberg: U.S. Military Planned First Strike On Every City In Russia and China … and Gave Many Low-Level Field Commanders the Power to Push the Button". [5]He has since written The Doomsday Machine: Confessions of a Nuclear War Planner. Of it we read:
    Shortlisted for the 2018 Andrew Carnegie Medal for Excellence in Nonfiction Finalist for the California Book Award in Nonfiction The San Francisco Chronicle's Best of 2017 List In These Times “Best Books of 2017” Huffington Post's Ten Excellent December Books List LitHub's “Five Books Making News This Week” From the legendary whistle-blower who revealed the Pentagon Papers, an eyewitness exposé of the dangers of America's Top Secret, seventy-year-long nuclear policy that continues to this day. Here, for the first time, former high-level defense analyst Daniel Ellsberg reveals his shocking firsthand account of America's nuclear program in the 1960s. From the remotest air bases in the Pacific Command, where he discovered that the authority to initiate use of nuclear weapons was widely delegated, to the secret plans for general nuclear war under Eisenhower, which, if executed, would cause the near-extinction of humanity, Ellsberg shows that the legacy of this most dangerous arms buildup in the history of civilization--and its proposed renewal under the Trump administration--threatens our very survival. No other insider with high-level access has written so candidly of the nuclear strategy of the late Eisenhower and early Kennedy years, and nothing has fundamentally changed since that era.
  6. [6]A classic instance of this aligning with "just war" is the United States' "war on drugs" as subset of "war on crime", while at the same time the CIA was a major worldwide drug dealer in league with other drug cartels -- all done to enhance American Empire during the Cold War -- and continues to the present. The four-part series mentioned below connects American Empire drug dealing to the current War on Terror, in particular in Afghanistan. This of course is colossal hypocrisy as well. Worse: the series posits American federal government administrations over many decades as the Ultimate Drug Cartel, with Blacks, Latinos, and generally the poor directly being knowingly poisoned en masse. Then they have been primary targets of the Drug Enforcement Agency, and thereby become victims of America's too often savage prison system that oppresses and brutalizes them all over again... See: "The War on Drugs Is a Failure, So [Attorney General] Jeff Sessions Is All for It". A citation from the article reads:
    In June [2017], the History Channel aired a four-part documentary series called America’s War on Drugs.” The series asserts that the war on drugs was actually a war of drugs—and that the CIA was essentially a partner in spreading drugs and drug use. The series follows how the U.S. intelligence agency, in an obsession with fighting communism, allied itself with U.S. organized crime and foreign drug traffickers and includes firsthand accounts from many involved. In an interview with Truthdig columnist Sonali Kolhatkar on her radio program “Rising Up With Sonali,” the series’ executive producer, Anthony Lappé, explains why the CIA got involved:
    It’s actually a pretty mind-blowing story when you look at the extent to which the CIA was involved with drug traffickers and drug trafficking throughout the Cold War. … If you look at Cold War policy against the Soviet Union, we were locked in a global battle for supremacy, where we have lots of proxy wars going on. … We needed to team up with local allies, and often the local allies we were teaming up with were people who had access to guns, who had access to underground networks, to help us fight the perceived threat of communism. There are actually a lot of similarities between what drug traffickers do and what the CIA does.
    Lappé elaborates by saying the hypocrisy of the war on drugs has been evident from the start: Secret CIA experiments with LSD helped fuel the counterculture movement, leading to President Richard Nixon’s crackdown and declaration of the war on drugs. The series also explores the CIA’s role in the rise of crack cocaine in poor black communities and a secret island “cocaine base.” In addition the documentary makes the connection between the war on drugs, the war on terror and the transformation of Afghanistan into a narco state and contends that American intervention in Mexico helped give clout to Joaquín “El Chapo” Guzmán and the super cartels, making it easier to send drugs across American borders. Watch Kolhatkar’s full interview with Lappé by clicking here. Please also see the now classic: The Politics of Heroin: CIA Complicity in the Global Drug Trade, by noted American historian Alfred McCoy. Of it we read:
    The first book to prove CIA and U.S. government complicity in global drug trafficking, The Politics of Heroin includes meticulous documentation of dishonesty and dirty dealings at the highest levels from the Cold War until today. Maintaining a global perspective, this groundbreaking study details the mechanics of drug trafficking in Asia, Europe, the Middle East, and South and Central America. New chapters detail U.S. involvement in the narcotics trade in Afghanistan and Pakistan before and after the fall of the Taliban, and how U.S. drug policy in Central America and Colombia has increased the global supply of illicit drugs.
    To be noted as well is Johann Hari's Chasing The Scream, which tells the tragic tale of America's long-standing offensive against drugs, and the way to end such a war worldwide -- that several nations are successfully embracing.
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Editor

Wayne Northey was Director of Man-to-Man/Woman-to-Woman – Restorative Christian Ministries (M2/W2) in British Columbia, Canada from 1998 to 2014, when he retired. He has been active in the criminal justice arena and a keen promoter of Restorative Justice since 1974. He has published widely on peacemaking and justice themes. You will find more about that on this website: a work in progress.

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