November 7, 2007
by Clay Barham

Restorative Justice is a view gaining momentum and acceptance in the American Judicial system.  It rises out of a belief that community is more important than individuals and laws protecting individuals.  The purpose of law, law enforcement and the Courts is to prevent and punish injustice brought by one person or group against another.  Law has nothing to do with providing justice for anyone, only defining, preventing and punishing injustice.

When an unjust act is committed, the perpetrators caught, tried, convicted and sentenced, it sends a message to other potential offenders that there are painful consequences to their unlawful actions. When you view it this way, it is easy to see why law applies to individuals who are unjust to other individuals.

Government becomes unjust when it fails to enforce the law and attempts to bring about justice for one group at the expense of another, based upon whims, emotions, passions and political correctness. Community benefits from the rule of law, and its enforcement, when certain and predictable. 

The term restore or restoration implies returning things to a point in the past prior to an action.  If someone commits an unjust act, the act cannot be erased from fact and history, as it happened.  In the family, when a child breaks the rules, he or she is punished, but restored to his or her rightful place following the punishment.  This teaches the child not to repeat the offense and makes the child aware of the consequences.   The condition prior to the act, however, can never be restored to the way it was before the act. This is a common technique when dealing with children in the family, even when carried into the juvenile justice system.

In the adult judicial system, however, judges believe the bad actor can be restored to a prior position in community, like children, irrespective of his or her unjust act. The one acted upon unjustly, can never be restored if physically injured or murdered.  The courts, then, are looking out more for the interests of the criminals than they do the victims.  In the case of murder, the victim is lost, gone and never seen again to assume a role in community. 

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The courts now dismiss the victim as worthless because of his or her demise.  The offender, however, is still alive and, they believe, can become a valued member of community once rehabilitated.  The courts are assuming an emotional, caring position for the murderer, rather than punishing him or her to send a message to others of like mind.  If you have an impulse to hit me with something, to rob me, but you fear I might see you and punch your lights out first, you may think twice about your plan.  The prospect of being hurt and punished for doing a bad deed may be all the persuasion one needs to walk a better path. 

The weeping, bleeding judge who cares more for the crook than the victim is simply removing the threat of pain when doing the act and later caught.  American Courts are taking this path today.  To dismiss the intent of the written law, place their own feelings above the legislator and community, is both arrogant and dictatorial.  Written law is supposed to take the passion out of the judgment, which is why we do not yet recognize ex post facto law, often a tool of the dictator and the corrupt government.

Restorative justice takes the certainty out of law, behavior as it relates to law, and of behaviors pending.  Law, fogged in, leaves Americans behaving as if there are no true borders or predictability on the paths they walk.  It is easy to recognize the differences between predictable law as to certainty or restorative justice when you view the interests of the people.  Legitimate individual self-interest, in opposition to community interests defined by the leader of community at any given moment, tells us how to look at law.

Superiority of community interests requires making law by passion.  The superiority of individual self-interests require law be certain and passionless.  America was founded on the belief that legitimate individual self-interests are always superior to community.  Community benefits from individuals pursuing their own interests, which is why America is so prosperous.

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Clay Barham [send him email] has been a candidate for the California legislature and a stand-in talk show host for ABC.  He was educated in physical and behavioral sciences, with a Ph.D. in sociology.  He is the author of five books, with his latest being Foundations of Modern American Conservatism and Liberalism: The Roots of Freedom and Tyranny.  Visit his website at http://www.claysamerica.com.