Sara Osborne

Introduction:

To what extent can reforms of Western legal systems incorporate adjudicatory systems of non-Western cultures? Can we transplant non-Western practices into Western legal culture and anticipate results similar to those in the culture of origin? What factors, particularly the role of religion, would affect transferability? Rene Girard's work is enormously helpful in addressing these related questions. Because the anthropological approach is more inclusive than any one of the more discrete social sciences, unlike the five blind scholars examining the elephant, connections and links which might otherwise be ignored in public policy discussions are revealed. I pose these questions in the context of Restorative Justice for several reasons. First, Restorative Justice defines crime as a broken relationship between victim, offender, and community. The goal of an adjudicatory system then ought to be restoration to a proper stable relationship (Howard Zehr, Changing Lenses: A New Focus for Crime and Justice, 181, Herald Press, Scottsdale, PA, 1990). This contrasts with the dominant Western system of retributive justice, which links individual moral culpability with goals of deterrence through punishment as just desserts. Victim, offender, and community are isolated in order to meet these ends. Therefore, restorative justice advocates see Western law as fundamentally problematic.

Second, the very term "restorative justice" presumes something pre-existing to return to. "Culture," as defined in Girardian theory (James Williams, Girard Reader, glossary definition, 289, Crossroad Pub. Co., NY 1996), is presumptively a morally problematic solution to human violence. But it is also a condition precedent to any discussion of morality, including morality of legal systems, because without it there would be chaos and unending violence. So it is necessary to ask Restorative Justice advocates: What, if anything, do we want to be restored to?

Third, as a generalization, Restorative Justice advocates come primarily from two orientations, each motivated by what would seem to be differing world views: those with some organized religious affiliation, and activists with a left-leaning and even radical political philosophy. However, each must answer the question: What compels restoration over dis-integration? Fourth, as a movement Restorative Justice has a vital international grassroots following. Because Restorative Justice reformers, of either stripe, tend to see Western Law as the problem they are often attracted to non-Western solutions. Therefore, issues of religion, culture and law are always in the foreground.

These issues, so close to the surface in the context of Restorative Justice, of course have global implications. As Western Law -- the "problem" for Restorative Justice reformers but the prototype for international law -- struggles to bring more cultural diversity under its unifying umbrella, the question basic to any conflict of laws situation comes up again and again: On what Authority? When a foreign dictator says "make me," how do we respond? What Authority compels one response over another? Michael Ignatieff, in a recent article in the NY Review of Books, entitled "Human Rights: The Midlife Crisis," says "The Universal Declaration (of Human Rights) enunciates rights; it doesn't explain why people have them." (May 20, 1999, Vol.XLVI, No.9, 58). The unspoken question is: Under what Authority do we value human autonomy, and how is that Authority transmitted to others? Whether the conflict is genocide, capital punishment, apartheid or caste systems, blood transfusions, polygamy, universal education, birth control, or environmental hazards, any resolution must confront the question: Where do we look for Ultimate Authority?

Invariably it is "religion" and its manifestations in cultural norms, such as Law, which initially circumscribes that Authority. Therefore, the issue of Ultimate Authority requires clarification of the relationship between religion and law, followed by an assessment of the present context for that inter-relationship. Girard's theory about sacrifice and the scapegoating mechanism broadens the concept of "religion" well beyond a particular sect or denomination and defines it as THE source of individual and community identity. I adopt the phrase "Ultimate Authority" for this more inclusive usage because I think it makes it easier (for those who are unfamiliar with "religious" terminology) to see the many other sources we go to for "grounding," claiming them as The Ultimate Authority. This definition is applicable to the Rule of Law, various political ideologies or any other "ism." But, as noted above by reference to the founding sacrificial event, Ultimate Authority is first of all a shared transcendent experience out of which derives, secondarily, the Law and all other cultural norms such as sectarian religions. The continued emulation of this Ultimate Authority, through the mimetic process, is what perpetuates those norms along with that original transcendent experience shared by all.

In considering the initial questions about different adjudicatory practices I take seriously the metaphor of an organ transplant -- or the parable of new wine in old wineskins -- and advise careful consideration of a transplant's effect on both the donor and donee. Any transplant risks triggering a conflict of Laws or in other words, a rivalry of Ultimate Authorities. However, identifying compatible sources of Ultimate Authority -- common elements if there are any -- might be a way to assess transferability. This is the approach I take when doing a transplant assessment of the Navajo Peacemaker Courts, an adjudicative alternative which has attracted a great deal of attention among Restorative Justice advocates. Another is Family Group Conferencing, which originated in part to address the needs of the indigenous Maori of New Zealand. In the interest of time, however, this presentation will focus on the Peacemaker Courts.
 

Western Law as an Ultimate Authority:

If there is to be an organ transplant, we must first assess the nature of the ailment: What is the state of the Law in the West? What is it lacking that might be "fixed" by a transplant? In Violence and the Sacred (1972) Girard says "Religion shelters us from violence just as violence seeks shelter in religion." He goes on to say, "If we fail to understand certain religious practices it is not because we are outside their sphere of influence but because we are still to a very real extent enclosed within them."(V&S, 22). Law, as it embodies Ultimate Authority, is one of those "religious practices." We needn't look far to see the common genetic material. I experienced some comic relief at the conclusion of the Clinton impeachment trial, when the NPR commentator's voice became hushed as he described the Chief Justice stepping down from his lofty bench to return to "that great white marble temple of Law across the street." I imagined His Honor as Zeus ascending to Olympus after some base encounter with mere mortals below!

"Religion," Girard says, "... directs violent impulses as a defense against those forms of violence society regards as inadmissible." In other words, Good Violence deters Bad Violence. The Bad Violence most feared by ALL social order is revenge -- reciprocal violence -- because it is potentially endless and thus culture destroying ­ the Hobbesian War of All Against All. Good Violence, short-circuits Bad Violence by its structural replication of a cathartic cleansing scapegoat sacrifice. Sacrificial scenarios are effective because they "wick" the conflict away from the actual disputants, direct it at an expendable surrogate victim and then destroy both the conflict and the surrogate. The immediate threat to the community from escalating reciprocal violence between the two disputants has been averted and the two disputants are restored or reintegrated back into the community. From a purely utilitarian perspective it is highly economical, and the community is in a sense "saved" by the surrogate victim. However, to remain effective, the means and ends of Good Violence must remain absolutely sacred, an Ultimate Authority never to be questioned. "Question Authority" must be unthinkable and unheard of! Girard says, "Only the transcendental quality of the system, acknowledged by all, can assure the prevention or (my emphasis) cure of violence" (V&S, 24).

Girard says judicial systems and the institutions of sacrifice share a similar function in that they both seek to shortcircuit reciprocal violence (V&S, note 6, 23). But judicial systems' semi-consciousness (Question Authority as at least become thinkable) about the questionable morality of arbitrary surrogate victimage mechanisms is resolved by isolating the truly guilty and permitting limited reciprocal revenge: exacting a pound of flesh from the perpetrator but under limited circumstances. But the goal is still the same: "... to direct violent impulses as a defensive force against those forms of violence that society regards as inadmissible." Similarly as well, to remain effective, this controlled revenge or retribution, like the Good Violence mechanism of surrogate sacrifice, also depends on maintaining an absolute and unquestioned distinction between Good Violence and Bad Violence. The Rule of Law -- Good Violence -- must function as a sacred Ultimate Authority.

When this shared transcendental conviction is no longer universal cultural institutions such as judicial systems dissemble into more and more little laws, like a piece of bread dissolving in water (certainly we now have more than Ten). Without a universally shared transcendental conviction that reciprocal violence is only okay in limited circumstances, The Rule of Law quickly becomes multiple Ultimate Authorities -- Laws unto ourselves. Self -help run amok. The very thing "culture" was supposed to insure against. Where the Emperor has been revealed to be naked, such an Ultimate Authority must work harder and harder to maintain that distinction between Good Violence and Bad Violence. Perhaps the blindfold of Themis, the Goddess of Justice, assists in perpetuating the illusion that the distinction is not cracked.

As long as potential for reciprocal violence exists in human social life -- and given our mimetic nature that doesn't seem likely to change -- the need for Ultimate Authority will remain; and only an Ultimate Authority will finally eliminate the occasion for reciprocal violence. An example of this is in the recent Hollywood film Elizabeth. The new Queen violently eliminates her opposition and its Ultimate Authority, the Roman Catholic cult of the Virgin, only to realize she must fill the resulting void with another Ultimate Authority. So she becomes the Virgin icon, shifting the veil of the sacred from one Ultimate Authority to another. Girard says repeated versions of this sleight of hand throughout history means that centuries can pass before we realize there is no real difference between our principle of justice and the concept of revenge." (V&S, 24).

But we DO see and the condition of multiple Ultimate Authorities is upon us. Again quoting Girard, "a clear view of the inner workings indicates a crisis in the system ... a sign of disintegration" (V&S, 23). Western Law is a compromised Ultimate Authority because the threshold separating Good Violence from Bad Violence has been crossed. I recall my first insight into this problem and its implications, the extent of which I didn't fully understand until, years later, I discovered Rene Girard's work. In the early '80s I was a court reporter in the Boston Juvenile and Family Court. After sitting through many courtroom proceedings I noticed something which is now common knowledge in our therapeutic culture: perpetrators were more than likely victims themselves, but at the hands of another victimizer, and their courtroom identity (victim or defendant) was often determined by nothing more than mere fragments of time or geography. This opening onto the arbitrary side of "justice" is deadly to an Ultimate Authority which relies on maintaining the sacred distinctions of Good Violence/Bad Violence.

Today the valence of Good Violence/Bad Violence may shift several times within the course of one trial, or one tragic event. Recall OJ or the Menendez brothers' trials, news reports on the Kosovo crisis which remind us that the KLA too has its own history of violence; the conflicted grief for the victims at Columbine High School ­ should we or should we not mourn the boys who shot the others? The Rule of Law cannot do its job as an Ultimate Authority when it is not possible to exact satisfactory retribution (revenge) because we can't definitively label the bad guys and the good guys. This, then, is the world of Law in the 21^st Century ­ a world of rapidly disintegrating Ultimate Authority. This is the social context which gives rise to the question and it is also the medium out of which we must cultivate a new way.
 

Restore to What?

Since there can be no restoration or reintegration of an offender unless a group has formed and defined itself, this is an essential pre-condition for all restorative justice. Peacemaker Courts are explicitly grounded in a jurisprudence which derives from Navajo traditional religion and clan structure. In 1982 Peter MacDonald, Chairman of the Navajo Nation Bar Association, suggested that this tradition was strong enough to stand on its own and proposed that "justice" for the Navajo is synonymous with "self protection against the outside and taking care of matters internally." (Zion, 2 American Indian Law Review 89, 91). The Ultimate Authority of traditional beliefs are codified in the 1991 Navajo Nation Code of Judicial Conduct: "A Navajo judge should decide and rule between the Four Sacred Mountains." However, Navajo court decisions are recognized by courts "outside."

Within the structural strength of this common law there is a higher authority called K'e which results in an urging toward solidarity, group conformity, reciprocity of duties and obligations, an "instinctive urge to work in harmony with others in society." There is clearly a definable tradition to be restored to and a community in which to reintegrate an offender who strays outside. The fact that K'e can be described as "instinct" is evidence of the universal mimetic influence of the Ultimate Authority of K'e, ­ its capacity to compel emulation and therefore perpetuation of the community. It is a restraining force which, by virtue of its constancy, becomes invisible -- instinctual.

The Navajo religious tradition, as an Ultimate Authority, is essential to the Peacemaker Court's ability to achieve its restorative and reintegrative goals. Furthermore, "religion" or Ultimate Authority is essential to the functioning of ANY judicial system. However, given the compromised condition of the Authority of the Law in the West, it is possible that the attraction of reformers to non-Western practices is really a kind of nostalgic longing ­ a metaphysical desire ­ for a vital Ultimate Authority which is no longer available in Western institutions. If that is the case, then we must presume, incorrectly I believe, that we can simply choose any cultural narrative as our own, as if we are not a product of one to begin with (see Stanley Hauerwas, A Community of Character: Toward a Constructive Christian Social Ethic, Univ. of Notre Dame Press, London, 1981, 9. "Every social ethic involves a narrative, whether it is concerned with the formulation of basic principles of social organization and/or concrete policy alternatives.").

But, where there is confusion about norms or Ultimiate Authority, familiar rituals (liturgical forms such as courtroom protocol, singing the national anthem at baseball games, meditative chanting, or repetitive slogans at a political rally, et.al) can compel group formation through the mimetic process. Jeffrey Rosen writes in the New Yorker Magazine ("The Social Police: Following the Law Because You'd be too Embarrassed Not To," October 20-27, 1997, 170-181) about a University of Chicago Law School program studying the social meaning of law enforcement by identifying community rituals and capitalizing on their authority to compel norm compliance. But he observes that confusion about social norms is paralyzing. As a kind of chicken-or-egg problem, to be compelling a ritual must have elements that speak to the experience of all the participants. In other words, again there has to be some pre-existing common ground of experience. The article references a mass ritual of clemency for illegal guns. But to compel participation, offenders must have had some prior experience of what clemency means; to be compelling that must be more than a mere legal knowledge. And so the ritual takes place on the steps of a church and not in the local courthouse or police station.

We do sometimes have to stretch to locate these shared experiences and ones that retain any sense of compelling Authority. Ironically, the "freedom" Western reformers perceive in traditional cultures is really the result of differentiation and stability created by systems protected and kept sacred by rigid taboos. That freedom (really absence of rivalry) is only achieved by universal submission to a mimetically compelling shared Ultimate Authority. As we consider reforms in the West we must first come to accept that if we place a high value on individual rights and personal autonomy, some unifying Ultimate Authority -- perhaps The Law -- may have to be relinquished in favor of pluralism, or many Ultimate Authorities. The kind of "freedom" provided by One Ultimate Authority is not possible if we cannot return to what we might now consider unacceptable limits on individual choices.

The good news is that people are searching for a way out of this double bind. And that has led reformers to observe the re-integrative success of the Navajo Courts. Briefly, the process involves no lawyers or judges. The court is convened by a Peacemaker who is a person of moral stature and status within the community. Because of their status, Peacemakers have a vested interest in whether or not disputants terminate the conflict between them; similarly the disputants have an interest in rising to the expectations of the Peacemaker. Setting up a mimetically powerful model is deliberate.

An opening prayer convenes the group, invoking the assistance of the "supernaturals." Scripture readings at certain stages of the process emphasize the "right order" of Creation. The conflict itself is objectified as a "monster to be killed." The system is purged of the evil conflict and both parties share in a solution which balances their obligations and privileges. The final agreement literally draws the disputants into a cosmic process as participants in the "re-creation" of the rightly-ordered universe invoked at the beginning. As a protocol or process this seems simple enough to replicate. But what we fail to see is that it can only function if all parties accept the Ultimate sacred Authority of the Story and their part in it.

The Peacemaker Courts work because the Navajo Nation recognizes the necessary condition Girard posits for the perpetuation of any Ultimate Authority: "the transcendental quality of the system (must be) acknowledged by all." The Navajo Nation has explicitly designed the system to remain as separate from any conflicting Ultimate Authority as possible. However, this is a condition long gone from most Western democracies and certainly from US society. Western Law encounters a variety of competing Ultimate Authorities -- globally locally, and personally ­ in its effort to be "The One acknowledged by all." But, in its compromised condition, it is only one among many. Stanley Hauerwas, pacifist and Christian ethicist, says, "... it is not that we have no moral guides, but that we have too many."
 

Is there a Common Ultimate Authority?

Because the Ultimate Authority of the Law as "The One" is compromised in the West, and since we still can't do without some form of it, Ultimate Authority has shifted -- by another sleight of hand -- from our cultural institutions to The Individual, the Law unto Ourselves. We see evidence of this in our fascination with the private lives of public figures, as well as increasing concerns for international human rights. This makes the Peacemaker in the Navajo courts of special interest because he/she is a person who "embodies" Ultimate Authority. Girard's mimetic theory also helps explain why this person is so significant: Ultimate Authority can be distilled and focused in a one-to-one relationship. Girard is of course not the first to observe the imitative capacity of humans, but I think he sheds new light on its centrality. We humans are simply so thoroughly imitative that all our social desires originate in the context of a relationship with an Other. More than we may want to admit, we are like those goslings who hatch and follow the first parade that goes by, accepting it as the "good mother."

In the context of the diffused Ultimate Authority of Law this is important because persons who embody any Ultimate Authority have something we desire and something we need: Ultimate Authority. The Navajo Peacemakers are the mimetic focal point in the Peacemaker courts. The extent of their identification with the Nation's Ultimate Authority compels a wrongdoer to imitate the Peacemaker's source of authority and thus become restored with the community and its traditions.

There are also such persons in our own neighborhoods. As institutional authority declines the opportunities for one-to-one mimesis increase. But this is a two edged sword. Absent the mediating influence of authoritative institutions we are highly susceptible to the mimetic Ultimate Authority of charismatic leaders. This is dangerous and can foster more random and senseless violence. But, as Girard reminds us, mimesis is also the process which makes it possible for us to engage in empathic relationships where we can emulate those who live in the world without resorting to reciprocal violence.

So, if all our desires are awakened by the desires of another in a metaphysical triangle of desire, then perhaps we should start from the ground up. Ultimate Authority, embodied in a single person and experienced in a one-to-one relationship, can facilitate re-integration (personally as well as collectively) even where collective norms are weak or morally suspect. Proximity to a single person who embodies Ultimate Authority can trigger shame in a wrongdoer, a powerful feeling of self-annihilation comparable to the psychic death of Girardian undifferentiation (Our daughter Gillian, as a two-year-old, did not graciously accept "constructive criticism." On one occasion she stamped her foot, saying "Don't shame me! It makes me feel like I'm dead!"). Because this ontological shock is so shattering, if and when it occurs, it is critical that it happen in the presence of someone who can be trusted to pick up the pieces. Absent the Gift of Grace, this kind of trust is built on mimetically reinforced prior experiences of forgiveness and reintegration.

An article in the January 19, 1997 Chicago Tribune reported the story of Randy, a 14-year-old honor student who had "fallen in with the wrong crowd." Appearing in juvenile court for robbery and car theft, his two victims were there -- to offer help. They dropped the charges in exchange for three weeks of Randy's help washing their 13 cars. One of the men had his own record of juvenile crime; both were grateful for memories of intervening adults who were both intolerant but understanding. Programs are being developed which, consciously or not, capitalize on this dynamic. They utilize the "restored" experience of one person as a mimetic influence on those who are in need of that experience. One such program is the Red Jackets in Minnesota which provides ex-offenders for juvenile mentoring and community service and is described in a video prepared by the Presbyterian Church (PDS#72-630-96-720).

Conclusion:

Girardian insights in the context of Restorative Justice reveals the circularity of our dilemma when we seek social continuity and justice at the same time. We can either 1) re-integrate wrongdoers back into a normative community; or 2) excise wrongdoers from the social body so as not to pollute that normative community. Both rely in some way on the generative mimetic scapegoating mechanism. Discussion of Authority has also been avoided in Western policy debates because of its association with hierarchy, domination, non-egalitarianism, or right wing politics. This also needs to be re-viewed through the Girardian lens to clarify the distinction between hierarchy and dominance and their relationship to mimetic rivalry.

In our world where the sacred authority of institutions has been unmasked we are left with our triangular desires, looking to each other for Ultimate Authority, the missing piece (no pun intended). Given the triangular structure of our mimetic nature this means our current condition finds us stripped down to bare bones of a choice. Ultimately the only way out of this valley is Transformative Justice, which requires the intervention of a mediating Ultimate Authority which can be "carried" into a conflict by certain persons who have not so much learned to forgive, but how to be "the forgiven." (S.Hauerwas, The Peaceable Kingdom, Notre Dame, 1983). Programs blessed by the presence of such persons who embody, and then mimetically project their experience of a forgiving and transformative Ultimate Authority, will bear up other restored lives.

But finding these people may be more a matter of grace than policy planning. Nevertheless, I would like to see restorative justice advocates pursue programs which encourage one-to-one contacts wherever possible. The most important question facing Law today is really just restating a very ancient question: To what -- or to whom ­ do we pledge our allegiance and why? If it is not to The Law, then were do we look for Ultimate Authority? It seems that, mimetic creatures that we are, who or what we worship matters a great deal.
 

Schuylerville, New York

May 1999