Graybill, “Religion, Tradition, and Restorative Justice in Sierra Leone”

In June, the University of Notre Dame Press will release “Religion, Tradition, and Restorative Justice in Sierra Leone,” by Lyn Graybill.  The publisher’s description follows:

In this groundbreaking study of post-conflict Sierra Leone, Lyn Graybill examines the ways in which both religion and local tradition supported restorative justice initiatives such as the national Truth and Reconciliation Commission (TRC) and village-level Fambul Tok ceremonies.

Through her interviews with Christian and Muslim leaders of the Inter-Religious Council, Graybill uncovers a rich trove of perspectives about the meaning of reconciliation, the role of acknowledgment, and the significance of forgiveness. Through an abundance of polling data and her review of traditional practices among the various ethnic groups, Graybill also shows that these perspectives of religious leaders did not at all conflict with the opinions of the local population, whose preferences for restorative justice over retributive justice were compatible with traditional values that prioritized reconciliation over punishment.

These local sentiments, however, were at odds with the international community’s preference for retributive justice, as embodied in the Special Court for Sierra Leone, which ran concurrently with the TRC. Graybill warns that with the dominance of the International Criminal Court in Africa—there are currently eighteen pending cases in eight countries—local preferences may continue to be sidelined in favor of prosecutions. She argues that the international community is risking the loss of its most valuable assets in post-conflict peacebuilding by pushing aside religious and traditional values of reconciliation in favor of Western legal norms.

Summer Fridays With Pascal: On the Nature of Law

Many law students know the rough outlines of the distinction between naturalLaw law and legal positivism. Both are theories about the nature of law–about what is distinctive about law as a concept. There are many difficulties and nuances here, but as a rough and ready statement, one could say that legal positivism holds that in order for something to be “law,” we must look to its provenance or pedigree in this social world, and only in this social world. It follows that for legal positivists, there is an unbridgeable conceptual gap between what the law is and what the law ought to be–between something’s being law and something’s being a just or moral law. The natural law conception of law is quite different. It holds that “law” includes as its fundamental or “core” example just law–morally correct law. This does not mean that the natural lawyer refuses to believe that there can be unjust laws. Surely there can be. What the natural lawyer believes is that a law’s justice, or its morality, is an integral part of what makes law truly, or fully, or in its core case, law.

It is interesting to see Pascal weighing very much in on the side of legal positivism. He is coming, of course, not from the perspective of what one typically associates with contemporary legal positivism (a late nineteenth/twentieth century phenomenon) but from the Jansenist perspective of the fallenness of postlapsarian humanity. His view is that though natural justice exists (i.e., Pascal is not a relativist), humanity simply cannot know what it is in its depraved state. Whatever laws exist are law simply because bodies vested with proper authority have issued them. Note also that this view of law and justice greatly reduces the issue of compliance against conscience with what one deems an unjust law. What do you expect in this world, with these fallen creatures, after all, but unjust law? Here is Pascal:

On what shall man found the order of the world which he would govern? Shall it be on the caprice of each individual? What confusion! Shall it be on justice? Man is ignorant of it.

Certainly had he known it, he would not have established this maxim, the most general of all that obtain among men, that each should follow the custom of his own country. The glory of true equity would have brought all nations under subjection, and legislators would not have taken as their model the fancies and caprice of Persians and Germans instead of this unchanging justice. We would have seen it set up in all the States on earth and in all times; whereas we see neither justice nor injustice which does not change its nature with change in climate. Three degrees of latitude reverse all jurisprudence; a meridian decides the truth. Fundamental laws change after a few years of possession; right has its epochs; the entry of Saturn into the Lion marks to us the origin of such and such a crime. A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side.

Men admit that justice does not consist in these customs, but that it resides in natural laws, common to every country. They would certainly maintain it obstinately, if reckless chance which has distributed human laws had encountered even one which was universal; but the farce is that the caprice of men has so many vagaries that there is no such law.

Theft, incest, infanticide, parricide, have all had a place among virtuous actions. Can anything be more ridiculous that a man should have the right to kill me because he lives on the other side of the water, and because his ruler has a quarrel with mine, though I have none with him?

Doubtless there are natural laws; but good reason once corrupted has corrupted all. Nihil amplius nostrum est; quod nostrum dicimus, artis est. Ex senatus–consultis et plebiscitis crimina exercentur. Ut olim vitiis, sic nunc legibus laboramus. [My translation: Nothing more than this is ours; what is ours is what we say, our art. Crimes are mandated to us by the senate, the consuls, and the people. Once we suffered from our vices, now we suffer from our laws.]

The result of this confusion is that one affirms the essence of justice to be the authority of the legislator; another, the interest of the sovereign; another, present custom, and this is the most sure. Nothing, according to reason alone, is just in itself; all changes with time. Custom creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its authority; whoever carries it back to first principles destroys it. Nothing is so faulty as those laws which correct faults. He who obeys them because they are just, obeys a justice which is imaginary, and not the essence of law; it is quite self-contained, it is law and nothing more….

From Fragment 294 of Pensées.

Philpott, “Just and Unjust Peace”

Next month, Oxford University Press will publish Just and Unjust Peace: An Ethic of Political Reconciliation (OUP May 2012) by Daniel Philpott (Notre Dame). The publisher’s description follows.

In the wake of massive injustice, how can justice be achieved and peace restored? Is it possible to find a universal standard that will work for people of diverse and often conflicting religious, cultural, and philosophical backgrounds?

In Just and Unjust Peace, Daniel Philpott offers an innovative and hopeful response to these questions. He challenges the approach to peace-building that dominates the United Nations, western governments, and the human rights community. While he shares their commitments to human rights and democracy, Philpott argues that these values alone cannot redress the wounds caused by war, genocide, and dictatorship. Both justice and the effective restoration of political order call for a more holistic, restorative approach. Philpott answers that call by proposing a form of political reconciliation that is deeply rooted in three religious traditions–Christianity, Islam, and Judaism–as well as the restorative justice movement. These traditions offer the fullest expressions of the core concepts of justice, mercy, and peace. By adapting these ancient concepts to modern constitutional democracy and international norms, Philpott crafts an ethic that has widespread appeal and offers real hope for the restoration of justice in fractured communities. From the roots of these traditions, Philpott develops six practices–building just institutions and relations between states, acknowledgment, reparations, restorative punishment, apology and, most important, forgiveness–which he then applies to real cases, identifying how each practice redresses a unique set of wounds. Continue reading

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