For the second time in two weeks I find myself using Brett Kavanaugh’s nomination to the Supreme Court as a catalyst for a post. As he has faced accusations of sexual assault as a teenager Mr. Kavanaugh and his accuser have been beset by a storm of controversy and this got me thinking about the nature of justice.
Earthly, legal justice, it seems to me is a process not an outcome. By that I mean that there are set rules that must be followed in order for justice to be carried out. Things like the presumption of innocence, being able to face your accuser, being able to view the evidence presented against you and not being tried repeatedly for the same offense. This is procedural due process and is at the heart of the Western conception of justice.
I am not suggesting that this always produces a perfect outcome. There is no perfection to be had this side of Paradise, so we should not expect it in this area either. Sometimes the innocent are convicted and the guilty set free. A just outcome or “substantive due process” can be a maddingly elusive thing. The insight from the Western legal tradition is that when “procedural due process” is followed it tends to produce better outcomes. If the rules are followed, more often than not the substance of justice is better.
Not many believe in this anymore, particularly in the chattering and criminal ruling class. They believe that justice is solely an outcome that is pleasing to them. “If so and so is not convicted, it is a miscarriage of justice”. If a specific outcome is not reached then justice has been denied. Increasingly, as the Kavanaugh episode shows, people don’t really care about the facts. They don’t care if the charges are proven or not or even true or not. Their “truth” demands punishment and retribution. This occurs amongst conservatives as well. We see this regarding their stalwart defense of police shootings as well as their assumption that minorities must be “guilty of something”. These attitudes are willing to set aside and abrogate the rules and procedures of justice to get at the outcome that satisfies their need for vengeance and political power. The problem is that circumventing the rules is a surefire way to consistently end up with substantively unjust rulings and policies.
This week’s actions surrounding the Kavanaugh controversy highlight this mindset. His accuser is automatically not just taken seriously (which is just) but believed. There is no recognition that Kavanaugh should be allowed to face these accusations or that any evidence is needed at all. Whether or not you think he is guilty and deserving of any procedural due process or not conveniently dovetails with whether or not you agree with his judicial philosophy. The way the whole accusation conveniently came to light at the last minute is good or bad based on whether you are liberal or conservative. People can believe whatever they like, this can be capricious and whimsical. However, human justice requires that before you punish someone by closing off a career or besmirching their reputation you must have actual corroboration and proof. That is to say that the basic rules of human justice should be followed. I am quite happy to entertain the possibility that Mr. Kavanaugh may have done that which he is accused of doing. If however, you seek to destroy his name regardless of any actual proof then you have lost me. If you oppose his nomination because of his judicial philosophy (which I do by the way) then honestly say so, there is nothing unjust about that. Allowing Mr. Kavanaugh, or any such nominee, to be steamrolled without due process being followed takes us further down a road, the end of which lies a place no reasonable people would wish to be. The basic problem here is that, as advantageous as the Western tradition of due process has been, it at its root depends on retribution for its animus. This almost inevitably leads to short-circuiting the rules in order to take a measure of retribution. This is ever more the case in an environment where government has grown massive and the stakes for control of that government have risen correspondingly.
All of this should be contrasted with God’s justice. God’s justice is at its core restorative not retributive. God’s justice makes whole what was torn apart. His justice puts us right with Him and restores us into right relationship with the Father as well as the rest of the community. His justice is indistinguishable from His mercy and that is not a coincidence. That is the earthly standard that Jesus sets for us in His ministry. It must be the standard that we should aim at ourselves. Remember “thy will be done on Earth as it is in Heaven”.
I don’t think this means we can get away with anything. We are to keep our promises, keep the commandments and as Matt: 25:14-30, The Parable of the Talents suggests we are to repay our debts to one another. In another passage when Jesus finishes with the adulterous woman he instructs her to “Go your way and from now on do not sin again: (Matt 8:11). He is merciful and this mercy is also God’s justice. She has not gotten away with anything; God knows what she has done. However, in the end, she has been restored to the community. This is both God’s mercy and His justice. As for final things, like an eternal relationship with God, that is a choice we can make. We are free to reject God’s gracious invitation and go to eternity without Him. That too is God’s justice but it is paired with a mercy that we, not God, reject.
Even in the supposedly badass Old Testament, God’s justice is restorative. He continually puts the Israelites through a process that sees them restored to right relationship with God. Even the “eye for an eye” passage is not so much about retribution than it is about ceasing the endless escalation of violence. God is ALWAYS about bringing His people back into relationship with Him. When we have done wrong the process is to be penitent and ask for forgiveness, to make amends and to then be put back right with God and the community. Of course to be forgiven we must ourselves forgive. That is just and merciful…side by side as these two concepts should be.
All of this not coincidentally jives with a non-governmental ideal of justice. Without government you have no criminal law, only torts and contracts. The way to enact justice in such a legal regime is to restore the one you have wronged, to make them whole again. This holds out the promise of a far better outcome than vengeful retributive “justice” meted out by the state and pushed by those interests which seek not a rules based process but an outcome based trial by fire that neither is truly just or prudent as this past week’s ugly display shows all too clearly.
Praise Be to God