William Johnson Everett
[From the Hamline Journal of Public Law and Policy, vol. 25, 2004 (St. Paul, MN). Presented on this web site by permission.]
Behind the judge's bench in our courtroom in Haywood County, North Carolina, a plaque displays a bas-relief rendering of the Ten Commandments. Between the two tables of this Biblical code stands a blindfolded Lady Justice, holding her scales. Our local village atheist, rebuffed in another dispute in the court, brought suit against the County to remove the plaque as an establishment of religion. ACLU lawyers and noted theologians weighed in, contesting whether this was simply a "secular" symbol or a blatant imposition of a particular religion. The case dragged on through appeals courts, only to become moot when the plaintiff died. His wife, a fundamentalist Baptist, refused to take up his cause. The plaque, having cost the county some $40,00 in fees, remains.
In the course of this well-publicized contest no one ever pointed out that the
two symbols - the commands of Israel's ever-watchful and protective God and
the blind judge weighing competing claims - are rooted in very different notions
of justice. The God of the Commandments seeks out the oppressed and vindicates
their cause. The blindfolded lady impersonally weighs competing claims to find
a judgment removed from the contexts of the disputants. The confusion of the
two principles, so vividly set forth in this contested plaque, permeates our
system of justice as well. The conflict of symbols reinforces a confusion of
practices and theories.
This experience reminded me forcefully of the deep connection between symbolism
and practice in the law. It also reminded me that we often cannot see these
connections because we are so captured by the simple distinctions between "secular"
and "sacred" that shape our discourse and vision. What we need to
learn is how legal and juridical practices are deeply rooted in symbols and
rituals. In order to make any basic changes in the practice of law and of the
courts we have to attend to the symbolic as well as the jurisprudential dimensions
of our practices.
Hamline's Symposium on Advanced Issues in Conflict Resolution self-consciously
explored these connections. The format of the symposium - an extended conversation
- was itself a new ritualization of a professional gathering. Rather than the
rituals of presentations and papers to audiences, it instituted a circle of
conversation around evolving themes. It put a round table at the center, set
with objects to focus our attention on key values that should shape our interaction.
There were no benches, tables, lecterns, or pulpits to set experts over against
laity. The rituals of our gathering that evolved within this setting were themselves
fundamental to the practices we wanted to explore - practices of mediation at
the table, of gathering in circle to encourage and to hear each voice, and of
seeking common solutions to problems.
Symbols and rituals are indispensable for our efforts to contain, transform,
and resolve conflicts. Without them, our conflicts are reduced to the exercise
of brute force and the loss of all the values of cooperation and mutuality that
make life in community possible. Therefore, our search for justice in the midst
of conflict must take symbols and rituals seriously and discerningly, especially
when we try to introduce new forms for dealing with conflict and restoring relationships.
The concept of ritual focuses our attention on the way our important gatherings,
whether for feasts or judgments, have the character of drama. The display of
symbols and the regular repetition of certain words, actions, and patterns of
interaction give people a sense that they are participating in something deeper,
more permanent, and therefore "true." Ritual relates our actions of
the moment to a timeless drama that gives meaning, and therefore, authority,
to what we do. Our rituals and the whole environment in which they occur - setting,
time, clothing, and furnishings - gain symbolic meaning and authority to the
extent they imitate this ideal drama. Indeed, we ordinarily operate within a
fairly small number of dramas about justice, punishment, reconciliation, and
forgiveness. To move beyond them in an effort to establish new understandings
of justice requires enormous attention to these symbolic factors.
Ritual and symbols exercise their peculiar social power in at least three ways:
by legitimating action, by ordering relationships, and by enabling people to
"rehearse" their participation in the resolution of conflict.
Legitimating Authority
Rituals are repeated patterns of action that have a symbolic character. That
is, their meaning is not fully explained by their immediate practical effect,
as when I hand someone a glass of wine. They become ritual when this action
occurs in a setting and context that reminds participants of something that
transcends the moment, as when I hand someone a cup of wine within a church
setting of worship. In the first action, I was simply relieving a guest's thirst
at a meal. In the second, I was enabling them to participate in a complex relationship
in a church community with many layers of meaning attached to the life of Jesus
as the Christ.
Because of this power rituals enable people to connect what they are doing to
a "deeper" level of reality that embraces and transforms time. That
is why very archaic rituals, whose historical origin is unknown, have such great
power. Those who can connect their present actions, through ritual and symbol,
to this world of permanence find a basis for legitimating their authority. To
the degree we accept the reality of the world to which the ritual points, then
we accept their authority. Indeed, we accept it "voluntarily."
To legitimate our actual patterns of judicial, mediative, and restorative action
we enact them as a kind of rehearsal of a more ultimate pattern of justice.
The ritual patterns we rehearse in our courtrooms and at our conference tables
are efforts to emulate a deeper or higher pattern that can lend legitimation
to our daily search for justice. In doing so, we not only justify our practices
but we also subject them to a higher standard of justice. The power of legitimation
also carries within it the power of critique. The critique, however, is only
as powerful as the drama in which the ultimate form of justice is set forth.
We can see this dynamic in the two models of the traditional court and the practices
of restorative justice. The traditional courtroom, like the traditional church,
was designed with several levels, the highest level having the greatest authority.
To the extent that people believed in a hierarchical universe, this architecture
established an effective pattern of authority for the court. The "higher"
drama that might critique as well as legitimate this form was first of all that
of the fatherly God of Israel, who punished as well as redeemed his people.
This is, I think, why the Ten Commandments have presented such an issue in courtrooms
in our southeastern states. For the more secular minded, of course, the blindfolded
lady provided an alternate source of legitimation as well as critique of self-interested
or prejudiced judges.
As long as people believed that truth was the Word of one Supreme Authority,
then court rituals focused on the final words of the judge and the respectful
silence of everyone else. As people moved away from this worldview and began
to see life in terms of circles of energy, courtroom architecture reduced its
vertical articulations and took more circular forms. When people began to see
truth as arising in the deliberations of people gathered in a circle of equals,
then rituals, such as that of the "talking piece," emerged to guide
this deliberation in order to evoke maximum participation in a process of speaking
and listening.
The circular processes of committees, task forces, teams, huddles, and mediation
gatherings began to become more authoritative for people. Circle rituals began
to augment or replace rituals of ascent and descent as legitimate bases for
seeking a just resolution of disputes. At this point the dramatic models of
restorative justice are not elaborated enough to discern ways that they can
critique the actual processes of these circles. However, it is fairly clear
that there are ways circles can intimidate people into unwanted agreements or
mask over painful negative truths underlying the injury in question for the
sake of social harmony.
Every ritual has to be seen in terms of the way it shapes legitimate authority.
This is crucial not only for common consent to the outcomes of judicial processes
but also for their critique. There are real choices to be made at this fundamental
level and we need to be discerning about them.
Ordering Relationships
The second way rituals and symbols shape our efforts to seek justice is by ordering
the relationships among actors. Rituals, like drama, require the assumption
of roles. The classic courtroom rituals clearly identify judges, advocates,
jury, plaintiff, victim, offender, and the general public, as well as many others.
Each is constrained by role definitions that organize the action according to
a certain conception of authority and the requirements of justice. The roles
themselves are organized according to a script flowing from one of our shared
dramatic scenarios about justice. The action is further defined by the organization
of space and other symbols. By all these symbolic means people leave behind
their ordinary roles, scripts, and life dramas to participate in an authoritative
and binding resolution of their conflicts. Ritual organizes them for this action.
Ritual first of all organizes the actors in order to remove them from the relationships
they may have or have had outside the ritual process. The ritual process and
its symbolic environment place the actors into a set of relationships according
to the purposes of the process. Sometimes we do this in order to protect victims
from alleged offenders. Ritual provides a safe setting for the pursuit of justice.
Sometimes we need ritual and symbols to distance judges from those who are judged
or are pleading their particular interests. In circle processes this legitimation
of transcendent justice rests in the wisdom of the group process itself. Each
understanding of the transcendent character of judgment requires a different
ritual form.
In providing an alternative pattern for organizing people's relationships, ritual
enables people to transcend their ordinary lives by entering into a "higher,"
more public drama. In a sense they become a different kind of person. Indeed,
our very word "person" originates in the Latin "persona,"
the theatrical mask that was also used to speak of the capacity of someone to
enter into a court of law. The existing role definitions of "defendant,"
plaintiff," "lawyer," or "judge" powerfully determine
what the participants can and cannot do in the drama of the court. Sometimes
this transformation in role can give them a power and protection that enables
greater truth-telling and discernment, but sometimes it can also falsify and
deny the wider communal context of the judicial process.
In the traditional courtroom, for instance, as my example of the plaque evidenced,
people have been ordered in a way that puts the judge, and in certain respects
the jury, as impartial, indeed even blindfolded, arbiters of decisions and outcomes.
In restorative justice circles, people are ordered in a way to put their collaboration
and the restoration of their community at the center of things. The first tends
to screen out the wider community context, the second draws it in.
In the traditional courtroom, people are organized in order to repress the violence
and irrationality that is presumed to lie just below the surface of human affairs.
The rituals of circles tend to assume that truth-seeking and the desire for
peace lie just below the surface of the anger and alienation fostered by anonymous
social structures or other collective forces. It seeks to evoke participation
rather than repress aggression. While the traditional drama of adversarial justice-seeking
assumes, like Lady Justice, that we are weighing or balancing competing interests,
restorative justice, symbolized in gathering around the table, assumes that
we are trying to find our common good.
By setting boundaries, establishing patterns of relationships, and evoking key
scripts and scenarios, rituals order relationships in ways that incline people
toward one concept of justice-seeking and right relationship rather than another.
To be effective, however, these patterns of dramatic organization have to be
connected to patterns already acted out in people's ordinary lives.
Rehearsing Actions
Rituals are dramatic scripts in which we act out our version of a more ultimate
drama, in this case, the drama of establishing justice and right relationships.
The rituals of our judicial system are complex tapestries of many little scripts
that we have rehearsed in our ordinary lives. We emerge in the little dramas
of recognition as babies, laughing at the parent who hides behind a door. Then
we proceed to more complex dramas of make-believe, of befriending others, and
even of lying and deceiving. Our lives are further shaped not only by the dramas
we enact in daily life, but by the dramas of theater, film, books, and stories.
Whenever we learn the dramatic forms for apologizing, for extending forgiveness,
for establishing an atmosphere of mutual listening and discernment, we are building
up the ritual forms for the larger drama of restorative justice. Without the
basic dramatic forms that we rehearse in ordinary life, we cannot sustain these
patterned actions within the stressful and tense engagements encountered in
judicial processes. The little dramatic scripts, roles, plots, and actions of
our lives prepare us, whether appropriately or not, for the actual settings
where we are seeking justice in the midst of conflict and injury.
If, in their daily life, people rehearse rituals of subordination, silencing,
command, or retribution, they will enact these dramatic forms in judicial settings.
If they rehearse dramas of participation, of conversational inquiry, and negotiation,
then they will seek to bring these into the formal process of justice-seeking.
A ritual perspective thus requires that we take account of the interplay between
the formal processes of justice-seeking and the environing culture and community
in which they take place. Any effort to change the rituals of justice requires
attention to the wider rituals of the culture in which they take place.
Nothing is more richly dramatized in our society than the pursuit of justice,
whether in film, theater, or literature. However, the dramatic forms we operate
with remain fairly limited. In our present search for justice we usually operate
within the dramas of being judged guilty or innocent. The complex dramatic model
of finding, within a communal setting, a way to restore health to a community
is still in the process of emerging into our ritual culture of justice-seeking.
If new institutions for seeking restorative justice are to become central, they
will have to cultivate both the transcendent dramas that might legitimate them
and also the little dramas of everyday culture in which people can rehearse
their participation in them. A ritual perspective provides a kind of wisdom
for cultivating these dramas and seeing how our rituals and symbols might enable
us to live into them as we seek a way of justice that serves our human need
for community and healing.
When I think back to our courtroom with Lady Justice's scales flanked by the Ten Commandments I begin to imagine a different symbolic setting for the adjudication of disputes and the repair of criminal injuries. Instead of the long bench separated by a rail and attorneys' desks from a passive public audience, I see a more circular room, the floor sloping slightly to the center, with a round conference table in the middle. The small circle of chairs at the table is framed by several concentric circles of chairs. Over head the slightly domed ceiling has murals of Native American councils, of town meetings, and other citizen gatherings, dating back to ancient times. On the table is a large feather in a carved wooden handle. My guide to these chambers tells me that this is where most judicial conflicts are resolved. She explains about the feather and begins to tell me in a hushed voice what they do when they come together and enter into their proceedings.
A Brief Bibliography
Tom F. Driver, THE MAGIC OF RITUAL: OUR NEED FOR LIBERATING RITES THAT TRANSFORM OUR LIVES AND OUR COMMUNITIES (San Francisco: Harper, 1991).
William Everett, THE POLITICS OF WORSHIP: REFORMING THE LANGUAGE AND SYMBOLS OF LITURGY (Cleveland: United Church Press 1999)
Michael L. Hadley, ed., THE SPIRITUAL ROOTS OF RESTORATIVE JUSTICE (SUNY Press 2001)
John Paul Lederach, THE JOURNEY TOWARD RECONCILIATION (Scottdale, PA: Herald Press, 1999).
Kay Pranis, Barry Stuart
& Mark Wedge, PEACEMAKING CIRCLES: FROM CRIME TO COMMUNITY (St. Paul: Living
Justice Press, 2003)
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