Insights from the Bible into the Concept of Criminal Justice

Published 1 December 2003
inner temple

This lecture was delivered by Rabbi Sacks at the Inner Temple on 1st December 2003

Lecture at Inner Temple

TRANSCRIPT

Master, the Princess Royal, Master Treasurer, fellow students of the Inn, this evening is for me both an honour and a pleasure, because it grants me one of those rare moments in life when one is able to complete an unfinished chapter of one’s youth.

One of my great ambitions was to be a Member of the Bar, and to that end I joined Inner Temple.  However, I never completed the course of study.  Indeed I lasted for a mere two hours, realising after the first lecture I attended that the law was made for far higher minds than mine. Instead I was seduced by the siren voices, first of philosophy, and then of faith, and therefore I technically I remain a student, which I regard as an honourable state.

I am not sure this evening whether you are my reward or I am your punishment, but permit me, before I get to the substance of my lecture, to tell one story I will never forget from those years.  It was a fine lawyer, the late David Daube, then Regius Professor of Roman Law at Oxford, who attempted to dissuade me from pursuing a career in philosophy and thought I should follow the law.

He said this: “Whatever you do, don’t become a philosopher. Philosophers never know what time of day it is; they are hopelessly lost in another realm. To illustrate my point I shall tell you a story about the man who is doubtless  your favourite philosopher: Wittgenstein.”

“Wittgenstein,” he continued, was once standing at the Cambridge station waiting for the London train.  With him were two of his students, Professor H. L. A. Hart and Professor Elizabeth Anscombe.  So immersed were they in metaphysical speculation that they entirely failed to notice the London train as it steamed in to the station and were still talking as it began to leave. They looked up and saw the train. Professor Hart ran and heaved himself on board.  Elizabeth Anscombe, an enormous woman, ran and heaved herself on board. Wittgenstein ran but couldn’t catch up with the departing train.  Left standing alone on the station, he looked so bereft that a lady was moved to come up to him and say, “Don’t worry, there will be another train in an hour’s time.”  Wittgenstein looked at the lady and said, “But you don’t understand.  They came to see me off!

Tonight you have asked me to speak about crime and punishment.  You have already heard from the politician, Oliver Letwin, and the policeman, Sir John Stevens.  There is certainly nothing I can add to what they have already said, and what you already know. Perhaps then the only thing I can do is to step back and look from a distance in time at this ancient and yet never-old subject of crime and punishment, seeing it as part of a history of ideas as to what society is and what we as human beings are.

Let me therefore begin with the Hebrew Bible.  The Bible recognises many dimensions of punishment.  For instance, it recognises its role in deterrence.  The Book of Deuteronomy mentions certain punishments about which it says (Deut. 19: 20), “Others will hear and be afraid, and such evil things will not again be done in your midst.” It knows, too, about rehabilitation of the offender.  As God says through the prophet Ezekiel: “I take no pleasure in the death of the wicked, but rather that he turn from his ways and live.”  Ancient Jewish law establishes many provisions directed at the rehabilitation of the offender.

However, one central idea of the Hebrew Bible has fallen on hard times in recent years, namely justice as retribution.  To be sure, this is clearly only one half of the biblical picture.  One of the earliest of rabbinic sayings is that “Initially God sought to create the universe under the attribute of justice, but He saw that it could not thereby survive.  What did He do?  He joined to it the attribute of mercy.” In Judaism, justice is always tempered by compassion.  However, from biblical times to the philosophy of Immanuel Kant, criminal justice has been seen primarily in terms of retribution.  Why has this idea suffered an eclipse in modern times?

The reason, it seems to me, is confusion between two quite different ideas, namely retribution and revenge.  So, for example, one textbook on punishment published in 2001 heads its chapter on retributivism, “Retribution as Vengeance.”  In Gordon (1994) it was said, “Retribution or the taking of vengeance for the injury which was done by the offender.”  In Roberts (1963) punishment was regarded as “vengeance or retribution” against the wrongdoer.

Why do I say that retribution is not revenge?  Because the Bible (Leviticus 19: 18) categorically forbids revenge: “Do not seek revenge or bear a grudge against one of your people, but love your neighbour as yourself; I am the Lord.” 

Confusion injures our ability to think clearly about the problems that face us, and when it affects language, it becomes a collective disability.  Today the word retribution has become so infected that it is difficult to use it without generating emotion, so I will use instead a more neutral phrase: justice-as-reciprocity.

The first appearance of the idea occurs in God’s covenant with Noah after the Flood (Genesis 9:6): “Whoever sheds the blood of man, by man shall his blood be shed.” This sentence (in both Hebrew and English) is a chiasmus, a literary structure of the form ABCCBA. Nor is this accidental. Form mirrors content. In a chiasmus, the second half of the sentence is a mirror-image of the first. It describes a world in which what happens to you is a mirror-image of what you do. This is justice as what Shakespeare calls “measure for measure.” As you treat others, so shall you be treated.

Stated thus, there is an intimate connection between justice-as-reciprocity and the great biblical command (Leviticus 19:18), “You shall love your neighbour as yourself.” Together they represent the two faces of the moral life. The first is the command of love: do to others as you would wish them to do to you. The second is the command of justice: as you do to others, so shall it be done to you.

Behind both is a profound idea that we seem to have lost in recent centuries, namely that the world is a place in which God creates order, but humanity has a tendency to create chaos. That is why we need law, lawyers, police, courts and judges. Central to the biblical vision is an ordered universe where everything has its integrity and place. Hence the significance of (moral) boundaries.  The reason why God tells Adam and Eve not to eat from one of the trees in the Garden of Eden is to establish that even in paradise there are boundaries.

That is why the Hebrew word for wrongdoing, like its English translation, “transgression,” means to cross a boundary, to enter forbidden territory. That is also why punishment in the Bible usually takes the form of exile, of which the contemporary form is prison – exile from home, from normal freedoms to a place of not-at-homeness. If a crime is an act in the wrong place, reciprocity consists in placing  the wrongdoer in the wrong place, as a result of which, we hope, he or she will experience something of the harm he has done to others.  The anticipated result is that he will then show remorse, acknowledge wrongdoing and be restored to home. Biblical justice is a matter of reciprocity, not retaliation or revenge. It is an attempt to restore order after crime has disturbed the moral order of the world.

Why does this concept of justice appears in the history of the West at the same time as the birth of monotheism? This is not just a historical question; it has some bearing on the world we inhabit in the 21st century.  In a polytheistic universe the world is constituted by a multiplicity of forces which clash and conflict in unpredictable ways – with only this in common, that they are unconcerned with who they are affecting and whether the person affected deserves his or her fate. In the ancient world, the forces were the sun, the sea, the earth, the storm, the wind, the rain. Today we would speak of the global economy, the environment, the march of technology and international conflict.  In such a world, what matters is power.  Might wins out against right. Justice, as Glaucon says in Plato’s Republic, “is whatever is in the interest of the stronger party.”

What threatens to destroy such a world, now as then, is precisely retaliation and revenge, the cycle of violence, the Montagus and the Capulets of the age. To the cycle of mutual destruction there is no natural end. It is against such a world that a new concept is born in an attempt to find order in the universe, not just random cruelty. That is when monotheism is born, and with it a new concept of justice, not as revenge but as the principled rejection of revenge. 
What is revenge?  Its essence is that it is personal – one person or group restoring their honour after it has been assaulted. Revenge is what Martin Buber called an I-Thou relationship. It is intensely personal.

What criminal justice from the outset seeks to do is to move from the personal to the impersonal, from revenge to the due process of law – law whose very glory is that it is impartial, that it treats all alike, the rich and poor, the powerful and powerless. So profound is this idea that it leads to the astonishing scene in Genesis 18 where Abraham, calling himself mere “dust and ashes”, is none the less able to summon God himself to the bar and say, “Shall the judge of all the earth not do justice?”  Even the Lawgiver is subject to the law.

This fact is important, as we will see later when we turn to “restorative justice”, a contemporary attempt to bring back an I-Thou dimension to criminal law.  But I hope this brief sketch of justice-as-reciprocity may make us think again about retributive justice, because without it we will lose the essential connection between punishment and justice.

Beginning in the late 18th century, a new mood swept over the West. One of its founding fathers was Jeremy Bentham, and it reached practical expression in the 1960s.  A profound shift took place in the moral landscape of the West in the course of which our understanding of punishment moved from justice-as-reciprocity to punishment as prevention, deterrence and rehabilitation – punishment as social engineering.  It happened against a background of the rise of science, the dethronement of religion, and “the birth of the modern”.

Three major changes took place in Western civilisation at that time.  The first was a temporal reorientation from past to future.  Raymond Williams in his book Keywords shows us how in the course of the eighteenth century a whole series of words that until then had been neutral or negative came to signify positives: words like ‘modern’, ‘original’, ‘creative’, ‘progressive’ and many others. Western culture no longer turned to the past for wisdom, but to the future. The new, it was assumed for the first time, would be better than the old. The concept of punishment too changed – from being a response to a past act, to one measured by future consequences (deterrence, rehabilitation and so on). That was the first change.

The second was that in the 18th century, for the first time, ethics aspired to the condition of science. Following the achievements of Copernicus, Galileo and Newton, science became the benchmark of legitimacy. One result was utilitarianism, the attempt to turn ethics into the scientific calculation of consequences (“the greatest happiness for the greatest number”), using this as a decision procedure in matters of public policy. Utilitarianism is notoriously indifferent to the claims of justice.

The third and most ironic development was that – at the very time people were searching for political and moral freedom – doubt was cast on the very existence of human freedom, that is to say freedom as choice, freewill and moral responsibility.  In its place came a succession of determinisms, scientific determinism (Laplace), economic determinism (Karl Marx), psychological determinism (Freud), and most recently genetic determinism.  Following the decoding of the human genome, it is widely expected that we will eventually locate genes for crime, anti-social behaviour, violence and so on.

Clearly, if we are not free, then we cannot be held responsible for our acts.  If human will is an illusion, then we cannot be guilty of our crimes, nor can we deserve punishment. The entire concept of moral agency (and with it justice-as-reciprocity) becomes incoherent. That is why the concept of retribution has been displaced, not because it means revenge (which it does not), but because it is predicated on human free will, which has been undermined by the assumptions of the human and social sciences.  The danger is then that criminal law begins to lose its anchorage in the idea of justice.

This is a fearful prospect for many reasons. Notoriously, utilitarianism is the logic of totalitarian regimes because one of the best forms of deterrence is the show trial in which the guilt of the accused is irrelevant; what matters is the public confession of guilt. As far as prevention is concerned, Steven Spielberg’s recent film Minority Report envisages a world in which crimes can be detected before they are committed and can thus be prevented before they happen. If the logic of punishment is prevention then pre-emptive punishment is by definition better than punishment after the event.  As for rehabilitation, we can surely speculate that in the not-too-distant future someone will argue that criminals should not be punished, but instead should have to undergo a form of genetic engineering that will remove the gene responsible for violence and replace it with something more pacific.

Of course, these are horror stories, but the serious point is that there is nothing in the logic of utilitarianism, of judging acts by consequences, to rule out on principle any of these options because they may be the most effective forms of deterrence, prevention or rehabilitation. That is why I am concerned that we never lose the logic of punishment-as-justice (retribution), because it is our sole defence of the idea that each of us is a responsible agent, a subject not just an object, and that punishment is ultimately an education in responsibility, meaning: the way we learn what it means to harm others is by undergoing harm ourselves.

Which leads me to the relatively new idea of restorative justice. This has been tested in various forms in New Zealand and Canada as well in Britain, especially in relation to young offenders.  Restorative justice covers a variety of approaches, among them victim-offender mediations, family group conferences and sometimes the involvement of local community leaders or groups.  Restorative justice represents an attempt to bring back a personal dimension to crime and punishment, the kind of personal dimension it had in its earliest phases in the history of society.

Restorative justice is thus both post-modern and pre-modern. Usually it involves confronting the criminal with his victim so that he can understand the effect his crime has had on a real life or a set of real lives. No less significant is that it is a way of enabling the victim (or his or her family) to feel that their voice has been heard. This too is part of the process of healing. The third motif is that restorative justice is intended to let us see crime not just as a moral wrong and a form of deviant behaviour, but also as a kind of injury, a wound within the fabric of families and communities that needs to be healed.  Restorative justice seeks reintegration of both criminal and victim within the community, knitting up society’s ravelled sleeve.

As one who has written on the politics of community, I am interested in and intrigued by restorative justice, which is an attempt, as it were, to bring back community as opposed to the State into the criminal justice system — especially since, as I have indicated, justice originally was a form of restoration, a different kind, but nonetheless a form of restoration.

However, one point must be made clear if we are to evaluate restorative justice – and here again my point of departure is the Hebrew Bible, which remains one of the most reflective of texts on crime and the moral order. There is not one track in the Hebrew Bible, but two. They are different and they co-exist.  One I have already spoken about.  It is dominated by the word justice, meaning reciprocity.

The other is defined by a cluster of concepts, including remorse, repentance, atonement, forgiveness and mercy.  The reason why there are two tracks is that at the heart of the moral universe as understood by Judaism and Christianity, there is not just an impersonal set of rules but also an intensely personal Presence, the supreme judge, God himself, who not only judges but also forgives. That is why the holiest day of the Jewish year is Yom Kippur, the Day of Atonement. Nowadays we might call it the day of restorative justice.

The distinction between justice and atonement is that justice deals with objective harm, property damaged, a person injured, a face scarred, a life taken.  Atonement deals not with objective but with subjective harm: the loss, trauma and grief caused to the victim or in some cases the family of the victim.  Retributive justice seeks to restore the objective moral order.  Restorative justice seeks to restore the subjective order, the relationships damaged by crime. They can only be healed by a direct personal encounter between offender and victim (and in some cases, wider circles such as family or community), That is restorative justice.

There is a fundamental principle in Jewish law, that the Day of Atonement only atones for sins between us and God. If we have harmed or offended other people we are only forgiven if we make restitution, show contrition and apologise, and they accept our apology.  The reason is that even God cannot do the logically impossible, which is to forgive on someone else’s behalf.  He forgives us for offences against Him, but if we seek forgiveness for an offence against X, we first have to be forgiven by X. It cannot be done vicariously, and the force of “cannot” is logical. Only the victim or in extremis the family of the victim can forgive, which is why restorative justice requires an I-Thou encounter between criminal and victim.

It therefore follows that there is a place for restorative justice, but only as an accompaniment to, never an alternative to, judicial sentencing and punishment. The very essence of criminal law as opposed to its ancient precursors (retaliation and revenge, and their opposites, forgiveness and atonement) is that law is impersonal. The judge does not sit in court in place of the victim.  If he or she did, we would have a system of revenge, not a system of justice. 

Therefore a judge cannot forgive – despite the fact that he or she may and should take into account remorse, contrition, the personal circumstances of the offender and the likelihood of re-offence as mitigating factors when passing sentence. Restorative justice is therefore valuable but it is a misnomer to call it justice.  Justice is precisely what it is not. It is a form of atonement – or as we might call it today, mediation, conflict resolution, therapy or catharsis. That is its virtue, not that it is a form of justice.

Why do I see restorative justice as valuable? Because it addresses one of the main failings in social thought from the eighteenth century onward, namely the attempt to see humanity, morality and society in terms drawn from the natural sciences. When you try to analyse a problem scientifically you usually begin by analysing phenomena into their smallest constituents, their “atoms”.

This is what Thomas Hobbes did in one of the key texts of modernity, The Leviathan. He saw people as atoms, as did the French revolutionaries in 1789 – as indeed has the whole tendency of abstract political and legal thought that Harvard jurist Mary-Ann Glendon calls “rights talk”.  The most distinguished critic of this tendency was Edmund Burke, who spoke instead of the “little platoons” that link individuals to groups. Rights-talk theorists tend to see individuals in the abstract, shorn of any constitutive attachments to family, community, society, history and tradition.

That may make sense theoretically but not humanly, because we are not atoms. We are children of these parents, members of that community, bearers of this history, friends of these neighbours – and these attachments are fundamental to who we are and what we become.  Several centuries of social thought, however, has tended to ignored them. The result is that family, community and other social and socializing bonds have become fragile and attenuated in today’s world.

Some years ago, I spent a day in Sherborne House, the centre for young offenders that was the subject of Roger Graef’s television documentary and book, Living Dangerously.  It is a centre for young offenders, mostly around 18 years old who have been in a life of crime for 8 to 10 years. It is their last chance before a custodial sentence.  I was making a television documentary and there were two moments I found heart-stopping.

The first came when I asked the young offenders, “When you have children what kind of father would you like to be?”  To my amazement, several of them started crying.  They knew exactly what they wanted to be – someone who was always there for his children, firm, strong and consistent, but above all there. My question caught them unawares, and they suddenly became conscious of what they had lacked from their own fathers.

The second came when I asked the Director of the centre what networks of support the young people would had when they left. The answer was, more or less, none – at least not from the local community or from their families.  For the first time I sensed what it must be like to be a young offender without the supports I had always taken for granted. To break any behavioural habit is difficult. Without help, it can be impossible. I was reminded of the African saying, taken by Hillary Clinton as the title of a book: “It takes a village to raise a child.”  We are not social atoms.

What restorative justice restores is insight into the human context of crime.  It does not address the act, the wrong or the harm. It addresses persons, the criminal and the victim, and takes them seriously as persons.  It focuses on the whole network of relationships within which we have our being. At least some forms of crime flourish in anonymity, when you neither know the victim nor do you think it likely you will meet. Restorative justice restores the personal face of crime by confronting the criminal with his victim and vice versa. As such, it may begin a process of healing, whether through apology and restitution on the part of the perpetrator, or forgiveness (or at least understanding) on the part of the victim and community. This is not justice – classically it was called atonement – but it is a not unimportant accompaniment of justice.  It is the human face of crime.

My argument has been simple.  First I sketched a chapter in the history of ideas, beginning with retaliation or revenge which belong to a world in which force prevails (tragically the international arena still seems mired in that model); moving to the revolution of monotheism in which human revenge is forbidden, its place taken by the impersonal processes of law. From there I spoke of the transformation of thought from the eighteenth century onwards, in which punishment came to be seen less in terms of the past, the actual crime, and more in terms of future consequences – a move away from justice toward social engineering. From there I moved to the recent interest in restorative justice with its attempt to re-personalise crime by confronting the criminal with the victim and (sometimes) the victim’s family and community.  I argued that this is not a form of justice, nor can it substitute for the impartial process of the court. It belongs to what was once called atonement, and now, mediation or conflict resolution. It is best seen not as an alternative to punishment-as-justice, but as a valuable accompaniment, allowing the victim to feel that his or her voice has been heard, the perpetrator to confront the human consequences of crime, and the community to assist in the re-integration of both.

Having spoken about restorative justice, I have hinted at a fundamental idea that must concern all of us as citizens. One of the great teachings of the Bible is that the creation of a law-governed society cannot be a task for courts alone.  It is essentially a task of families and communities, and of education as conceived in the Bible – namely the internalisation of law, so that the more the law is engraved in our consciences (what Freud called the superego), the less oppressive is the need for police, surveillance and other mechanisms of enforcement.  The concept of education-as-internalisation has begun to reappear in our national curriculum under the heading of Citizenship.  The maintenance of law is a complex partnership in which we all share responsibility: parents, schools, neighbourhoods, communities, friends and publicly recognised role models. Law ends in court, but it begins elsewhere, in habits of law-abidingness to which we must all contribute.

Permit me to end with a simple tribute to your work. Twelve-and-a-half years ago, when I became Chief Rabbi, I was invited to a dinner to talk about my hopes for the Jewish community.  Present was a very distinguished lawyer, sadly no longer in the land of the living – the late Sir Peter, later Lord Chief Justice Taylor. At the end of my talk he turned to me and said, “Chief Rabbi, I applaud your vision, but what will you do with a wicked old sinner like me?”  I replied, “Peter, how can I possibly allow you to speak of yourself in such language?  Do you not recall the saying of the Jewish Sages two thousand years ago: ‘Any judge who delivers a true verdict becomes a partner with God in the work of creation.’” Sir Peter had the good grace to blush.  In an age in which too many cruel jokes are made about lawyers, let me salute you as God’s partners in the dual process of creating a just and gracious society – the love of law and the law of love.