Elements of Reconciliation —  Part 1: Justice

Justice Graphic


Newsletter 206 — February 7, 2024

From the Directors Heidi Burgess and Guy Burgess

Back in December 2023, we published Newsletter 184 entitled "Envisioning a Future (Almost) Everyone Will Want to Live In" which was the beginning of a 3-post series looking at future visioning and reconciliation, which (as we explained then, and again below) are closely linked. This is the second in that series.

Also, we'll be talking about these issues, along with a broader discussion of peacebuilding and war waging in the context of Israel/Hamas and elsewhere in a live video chat with Ashok Panikkar this coming Sunday (February 11) at 10 am Eastern (GMT - 5).More information, and the link, can be found here.


John Paul Lederach's "Meeting Place"

In our first post, we drew our inspiration both from Ebrahim Rasool and John Paul Lederach.  Rassol is a former South African ambassador to the U.S., who explained in a talk to the Alliance for Peacebuilding, that you had to "begin with the end" — begin with an image of the society you want to build, and then figure out how to build it.  He also observed that you had to accept that [the other] is "here to stay." In his case, he explained that the ANC (the African National Congress) accepted, even at the height of apartheid, that the Whites were there to stay — they weren't going anywhere.  So, too, do American progressives and conservatives need to accept the notion that the other is here to stay. Neither is leaving, and neither is going to suddenly convert, deciding the other side was "right all along." So you have to figure out how to build a society that both conservatives and progressives (and most everyone else) will want to live in.

That requires some degree of reconciliation of the deep and long-standing differences that are tearing apart the U.S. and other developed democracies. In the earlier article, we then drew from peacebuilder John Paul Lederach's notion that reconciliation is the "meeting place" of peace, truth, justice, and mercy as he explained in his book Building Peace.

Reconciliation, in essence, represents a place, the point of encounter where concerns about both the past and the future can meet. Reconciliation-as-encounter suggests that space for the acknowledging of the past and envisioning of the future is the necessary ingredient for reframing the present. For this to happen, people must find ways to encounter themselves and their enemies, their hopes and their fears.

He first saw this happen, he recounts, when he was working in Nicaragua, during the Nicaraguan civil war. He ended up working with a "conciliation team" that was mediating negotiations between the Sandinista government and the Yatama, an indigenous resistance movement.  He described how that experience transformed his understanding of reconciliation:

Given the context of war and the deep-rooted animosities that persisted, these were highly charged meetings. At the opening of each village meeting, the Nicaraguan conciliators would read Psalm 85. The psalmist refers to the return of people to their land and the opportunity for peace. In two short lines at the heart of the text (85:10), the Spanish version reads (in translation), "Truth and mercy have met together; peace and justice have kissed." Hearing these powerful images time and again in the context of a deeply divided society, I became curious as to how the conciliators understood the text and the concepts that form a pair of intriguing paradoxes.

He created an exercise which explored the meaning of those terms to the Nicaraguan conciliators, and has repeated that exercise in many other contexts, including conflict and peace conferences, where I had the privilege of participating several times. In what I have come to call "the Meeting Place Exercise," John Paul put people into four groups, one for each concept, and he asked them to "personify the concept"—to think of "justice," "trust," "peace," or "mercy" as a person.  Who are they? How do they define themselves?  What are their needs? Their interests? Their goals?  Who (of the other "people" in the room) are their friends?  Their adversaries?  ("Of whom are you most afraid?" he would ask.)  He had the groups consider these questions for awhile and then he brought one representative of each group up to the front of the room and mediated between them — in an effort to clarify how each party defined itself, what each party needed, what it needed from the others, and how all the parties' interests and needs could be met simultaneously "in the place called reconciliation."

Concepts of Justice

In my experience, (and I've run this exercise with my students many times, in addition to participating in two John Paul-run exercises, the justice group always seems to have a hard time deciding what kind of justice they want to be.  In the United States, people tend to think most often in terms of retributive justice (getting retribution for wrongs done) and distributive justice (getting one's fair share of money, power, goods or services and compensation for past inequities). Much less attention is paid to restorative justice — which aims to restore relationships between estranged people, and procedural justice, which aims to assure that procedures are followed as they are supposed to be and that (for instance) everyone is treated fairly and equally before the law.

Usually you need a mix of all four of these kinds of justice, but, just as it is preferable to minimize coercive power in the similar concept of the Power Strategy Mix (which calls for an optimal mix of integrative, exchange, and coercive power, using as little coercive power as possible), it is also good to minimize retributive justice as much as possible because, as Gandhi is said to have said, "an eye for an eye makes the whole world blind." Far better to repair relationships through restorative justice that tries, as much as possible, to make amends for things that have been broken, and builds a good relationship between people who had only been related as "perpetrator" and "victim" or "enemies" before. 

In this essay, we are thinking about reconciliation efforts which occur in the context of deeply rooted, long-standing, and generally hyper-polarized conflicts in which both sides can easily recite a litany of offenses that support their argument that they have been unjustly treated by the other group. These injustices (and debates over which transgressions were the most serious) are usually a major source of ongoing tension — despite the fact that the injustices may have been committed so far in the past that the original perpetrators and victims are no longer living. The result is an intense conflict over wrongs that are, in many important respects, "unrightable."  

Nonetheless, effective reconciliation efforts need to find some way of working through the complex array of competing claims in ways that lay the groundwork for a future relationship that is more widely seen as "just."  Doing this requires an ability to constructively balance the four principal types of justice.

Retributive Justice

Retributive justice focuses on holding people accountable for any wrongs they committed in the past. In situations where the perpetrators and victims are no longer living, the best one can hope to do is to remedy the continuing intergenerational consequences of those injustices, and to set the record straight so that future students of history know the truth about what actually happened.  In doing this, it is important to understand and place into appropriate context changes that may have occurred with respect to societal moral standards. There are, for example, many things that earlier generations regarded as perfectly reasonable that are and now seen unreasonable or even abhorrent (e.g. slavery and laws against homosexuality). We would argue that history should be written in a way that makes the change in values clear, rather than denigrating people for behavior that, while abhorrent now, was seen as reasonable or even virtuous in the time that they lived. 

Restorative Justice

Restorative justice, by contrast, is more concerned about laying the groundwork for a more positive future relationship. In doing this, it still focuses  on establishing the truth about what happened in the past and securing acknowledgments (and ideally apologies) from perpetrators of past injustices (or their descendants) that those things were wrong (by contemporary, if not historical, standards). It tries to do this, however, in a way that reweaves the social fabric in ways that produce a shared commitment to preventing such injustices in the future — a process that requires defusing (rather than continuing to dwell on) past tensions, as retributive approaches tend to do. 

Distributive Justice: Equity vs. Equality

Also key to successful reconciliation is making sure that, going forward, everyone gets their "fair share" of many benefits that society has to offer—this is “distributive justice.” Not surprisingly, determining what share is "fair" is contentious in and of itself.  In a BI article Heidi wrote in 2003 with philosopher Michelle Maiese (and updated twice), we noted that there are at least three possible ways to determine fairness:  equity, equality, and need. In that article, we used the "dictionary" definition of those terms, explaining that "equity means that one's rewards should be equal to one's contributions to a society, while "equality" means that everyone gets the same amount, regardless of their input. Distribution on the basis of need means that people who need more will get more, while people who need less will get less. 

However, that is not the way those terms are being used today, and adding to the confusion, the terms are now used differently on the right and the left.  Progressive (left) advocates of social justice generally use the term "equity" to mean the proportional distribution of social attributes (income, jobs, college admittance rates, life expectancy, incarceration rates, etc.) among racial, gender, and other identity groups. So if blacks make up fifteen percent of the population, 15% of every incoming college class should be black (or more if they are trying to remedy past injustice). At least 15% of all brain surgeons should be black, 15% of all plumbers should be black, 15% of all airline pilots should be black, 15% of all millionaires and billionaires should be black.  Similarly, blacks should only make up 15% of the prison population, and 15% of the people hospitalized with COVID.   Lower numbers with respect to good outcomes or higher numbers with respect to bad outcomes are prima fascia evidence of unfairness and injustice. They apply such criteria to all the protected racial and gender groups that are at the core of the Democratic coalition. 

To correct such injustice, many social justice and racial justice advocates argue that, to use Kendi's  phraseology,  "the only remedy for past discrimination is future discrimination."  In other words, fairness is giving more to people who themselves got (or whose ancestors got) less in the past. Calls for this kind of discrimination may stop once all groups are being treated proportionally, or there may be calls for continuing discrimination to compensate for past inequities. This,  however, raises some awkward questions, for example, with respect to women in higher education where, even though they still enjoy many "protected class" benefits, they also enjoy vastly higher rates of enrollment and graduation than men — a situation that, if reversed, would be seen as clear evidence of injustice. 

By contrast, the conservative right still advocates for the traditional meaning of the word "equity"— that one's rewards should be equal to one's contributions to a society. They argue that people who work hard and take risks should be rewarded with higher pay; those who contribute or risk less should get less. If that means that there are proportionally more white brain surgeons, millionaires, and billionaires, so be it. They worked hard and took risks to earn their money.  Of course, that ignores the problem that many people on the bottom of the hierarchy never had a chance to get the education, to work hard, or to get the good paying jobs. 

We advocate a middle ground approach. As we see it, social "goods" ought to be distributed in roughly direct proportion to the value that individuals add to society (the traditional notion of "equity,") with adjustments for the fact that some people, through no fault of their own, are less able to contribute value than others.  This would be a society with a much flatter social hierarchy — one that recognizes and rewards the often neglected, disrespected, and undervalued contributions of those at lower levels of the hierarchy — people who make important contributions to keeping our society running (remember those "essential workers" during the height of COVID). This would also be a society that makes it much, much harder for people to engage in exploitive practices that allow them to claim, as their own, value added by others.

Individual Versus Group Focused Justice 

In this context we should recognize that there are big questions about whether the concepts of justice and fairness apply primarily to individuals or to groups. US democracy and its legal principles have long been focused on the individual — as in the phrase, "all men are created equal." While this line has, of course, been reinterpreted over the centuries in ways that now include women and former slaves, the underlying individual focus remains. This focus also applies to the rights guaranteed by the Bill of Rights. It is individuals who have freedom of speech, freedom of religion, the right to due process and, even, the right to bear arms. 

In recent years, however, the social justice left has started to challenge this perspective — arguing that this whole legal edifice was little more than an elaborate mechanism for sugarcoating white oppression.  This way of looking at the world has led them to focus less on the degree to which specific individuals are responsible for or were harmed by oppressive acts of injustice, and more on the degree to which the groups to which people belong (particularly racial and gender groups) are being disproportionately harmed.  This, in turn, has led to policies, such as Affirmative Action or Title IX enforcement mechanisms that are less concerned about individual rights and more concerned about ameliorating group injustices.

Not surprisingly, this has proven to be quite controversial. Group-focused ways of looking at injustice tend to lead to serious tensions between groups who see themselves as oppressed and those who see themselves as being discriminated against (through reverse discrimination) because they belong to groups that have been labeled as "oppressors" and not because of anything they may have personally done.  This, we believe, is a major driver of the hyper-polarization that is tearing apart so many Western democracies. It is also preventing progressives and conservatives from working together to solve problems that all agree exist. 

As we explained more fully in an earlier post, The Disproportionality Trap and Counter Trap, we think that focusing distributive and procedural justice on individuals is likely to be much less divisive and, therefore, much more likely to be successful.  Such an approach would focus on providing assistance to people who face serious disadvantages for reasons beyond their control.  It would do so in a way that would provide everyone with a social safety net that would help people get through tough circumstances in ways that would allow them to then become more productive and successful citizens. (Thus it would correspond to our "needs" category for defining justice.) Such a system would focus the most attention on those facing the greatest challenges. In this way, it would tend to disproportionately distribute assistance to many disadvantaged groups favored by progressives, as well as to conservatives who, often for good reason, feel that they have been left behind by the larger society.

Procedural Justice

Determining what, exactly, constitutes "fairness" in a specific circumstance is, of course, also affected by the procedures used to make such decisions. Procedural justice is another type of justice that is often ignored, except when people feel as if they are being cheated.  Then it becomes a big deal. As we wrote in our BI article on procedural justice, procedures need to be consistent — similar cases should be treated similarly. Blacks should not receive harsher sentences than Whites for the same crime. Women should be given equal opportunities for advancement and to be heard as men (and vice versa).  Second, those carrying out procedures and making judgments should be impartial "neutrals," free of conflicts of interest.  Judges should base their decisions on the evidence presented, the law, and the Constitution, not on their personal or political preferences. Third, those directly affected by decisions should have a voice and representation in the decision making process — including the full range of due process rights to respond to accusations against them. And fourth, procedures should be transparent.  Decisions should be made through open procedures, without secrecy or deception.

The fight over the legitimacy of the 2020 presidential election in the United States is essentially one of procedural justice. President Trump's and his supporters still believe that his defeat was attributable to the fact that proper procedures were not followed.  They continue to claim voter fraud and counting irregularities, despite the fact that all of Trump's legal challenges have been firmly rejected by the courts (even by Trump-appointed judges). While Democrats are obviously pleased that they won the 2022 Presidential election, they are very concerned about how close the system came to failure and the many ways in which they see President Trump is laying the groundwork for much more effectively subverting the process in 2024. They point to the many things Trump and his followers did to try to change the results in 2020 — efforts to create alternate slates of electors, continuing searches for voting fraud, even after it was proven not to have occurred, and finally the January 6 storming of the Capitol in an effort to prevent certification of Biden's victory.  So far, the system has worked, and procedural justice has been served.  There have also been steps taken, particularly the passage of the Electoral Count Reform Act, to try to limit such procedural problems in the future.  But much more needs to be done, particularly at the state level, if Americans are going to have confidence in the fairness of our elections going forward.  

This is why a focus on procedural justice is so important.  Procedures not only need to be fair, they need to be visibly fair to all who watch. Hopefully extensive efforts will be made to be sure that is the case in 2024.  One organization currently trying to influence that is Living Room Conversations, which has prepared conversation guides to help local communities develop faith in their local election processes long before the November election actually takes place. Issue One: Fix Democracy First also has a National Council on Election Integrity which is a "bipartisan group of 40 government, political, and civic leaders who are devoted to defending the legitimacy of our elections."

The Brennan Center for Justice has detailed other things that local and state governments need to do before November 2024:

They should clarify limits on the discretion of local officials certifying election results. They need to strengthen laws that channel election disputes to the state courts rather than the legislature or another body and set clear standards for resolving these disputes. They should make a plan to send out accurate information to give voters confidence and preempt disinformation. That requires money and can’t wait until Election Day. They should bolster election administration with training, written guidance, and investment in equipment, security, scenario planning, staffing, and supplies. And they should enact, if they haven’t already, stronger laws against intimidation of voters and election workers. 

All of this focuses on a relatively narrow interpretation of voting laws — whether the votes were accurately counted, whether voters were duly registered, and whether voter fraud (such as voting multiple times) was effectively prevented.  There are a number of other procedural issues that are more difficult to cleanly resolve — especially in situations where, because of the closely divided nature of the electorate, small changes in procedures could have huge implications.  These include, for example, rules governing the convenience of voting (early voting and number and staffing of polling locations), the drawing of voting district boundaries (gerrymandering), registration procedures, and protecting the entire process from cyber attack. This is part of the reason why concern about electoral integrity continues and why Republicans have clung to the notion that the 2020 election was stolen. 

Fairness Policies 

This raises the last, critically important question about "justice"— whether policies being advocated and pursued by Republican and Democratic administrations are fair. Pretty clearly, Trump supporters, other Republicans, and many independents view the kind of justice being  pursued by the Biden administration (and the Obama administration before that) as highly unfair.  They oppose programs like the Biden Administration's Justice40 environmental justice initiative — a "whole-of-government" effort to, on the words of its critics, "put race at the center of government spending" on the environment.  They also see the arbitrary way in which the government decides who does and does not qualify for various types of racial preference as unfairly treating whites and poorly focused on those who are genuine victims of past injusticesThey further oppose the way in which retributive  approaches to injustice are being used to "cancel" or otherwise penalize people who don't fully embrace the DEI programs and the language and values they favor. Indeed, the progressive push for "social justice" is "just" in progressives' eyes and "unjust" in many conservatives' eyes. As we said up above, "justice" has to be the same for everyone to be seen as fair, and people affected by decisions need to have a say in those decisions. Neither is being done in the retributive and distributive justice being meted out in many colleges and universities, workplaces, and by many government agencies at the local, state, and federal level. 

The only way we are going to be able to get beyond this impasse and achieve social justice is to have a bi-partisan conversation about what that is and how it could be attained. As long as it is framed as a win-lose, winner-take-all distributive game where distribution of goods is based on your skin color or your party affiliation, we are going to be locked in a never-ending, highly escalated and dangerous battle that could easily lead to violence considerably greater than we saw on January 6, 2021, and conceivably much worse than the large-scale civil unrest that tore apart the US in the 1960s and early 1970's. This suggests that  those seeking to defuse our hyper-polarized politics ought to devote more attention to the development of a more robust and broadly acceptable notions of retributive, restorative, distributive, and procedural justice.

And....justice is just one of four goals that have to be balanced to achieve reconciliation.  We'll explore the other three — peace, truth, and mercy and the way they interact with these justice concerns in coming posts.


Lead Graphic Credit: Statue Of 'Justice' Old Bailey – Source: https://commons.wikimedia.org/wiki/File:Statue_Of_%27Justice%27_Old_Bailey.jpg; By: Lonpicman; Permission:  Creative Commons Attribution-Share Alike 3.0 Unported; Date Acquired: February 5, 2024


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