From Individual Rights to the Beloved Community: A New Vision of Justice

Like a rose that has sprouted in a weed garden and induced the weeds to back away in awe, the restorative justice movement has entered American legal culture and is posing an important challenge to core assumptions about human beings and about the very nature of human reality that our legal culture has taken for granted for more than two hundred years.

The United States itself was founded on a principle of human freedom that presupposed an inherent antagonism between self and other, a belief that the essential meaning of liberty was that we need to be protected against other people. This Fear of the Other was in part a rational response to the religious, social, and economic persecution that had in part characterized previous historical forms of social life, but it also introduced its own distortion into our liberal social fabric: it gave rise to a conception of social being that conceived of human beings as socially separated “individuals” who might form voluntary relationships with others through love, or through contracts, or through voluntary religious and civic organizations, or through democratically elected governments with strictly limited powers, but who at bottom needed always to hold in reserve the memory that the other posed a threat to one’s liberty and who therefore required a binding legal culture that placed “the rights of the individual” above all other social goods.

Implicit in this worldview has been the conviction that we are not inherently connected beings whose fulfillment comes through our mutual recognition of one another, through the inherent bond of our social nature that is completed through the embrace of love and solidarity, but rather that we are cast into the world as disconnected monads who only come into relation after the fact of our individual incarnations, with the borders between us being in need of constant policing to make sure that the seduction of trust never leads us to let down our guard. While we might “voluntarily” engage in any foolish dependency on the other that we choose, the law is always there to guarantee “as a matter of law” that nothing actually binds us except our mutual and solemn commitment to our everlasting ontological separation.

What if Lady Justice were omnipartial? A new legal culture based on empathy and care might inspire a better use for that blindfold of hers.

Liberty as Spiritual Separation in American Law

As you read this from within your own private space, as you float through the solitude of your day, consider how the institutions of American law condition and envelop you in the spiritual prison of your separation. You are a citizen in a democracy, but the most fundamental right that defines that democracy is the “secret ballot” rather than a process expressive of any communal bond that unites us. You are legally bound to all others through a “constitution” that protects you against, and therefore affirms the constant threat of, infringement on your right to freedom of speech, of religion, of association, and your right to be protected against others searching your house or making you quarter soldiers or taking away your guns … but that binding constitution affirms nothing about our connection to one another and therefore offers no commitment to making sure that our social connection will be realized through our legal process. The substantive law of property guarantees that we can own separate land parcels and exclude others from those parcels, but affirms no binding obligation to share the land, or the food that it produces, or the shelters that we construct upon it. The law of contracts guarantees our freedom to enter binding agreements with others, but in a social context that assumes we are competitors in a marketplace whose goal is to get the benefit of our bargains, rather than “cooperators” whose intention is to realize ourselves through mutual fulfillment and shared objectives. Tort law assures we are protected against others who might pull a chair out from under us as we sit down to the dinner table, or intentionally...