There’s nothing natural about justice. As animals, we moved beyond survival of the fittest individuals to survival of the fittest communities a long time ago. We have a pack, a tribe. We understood the need to protect those in our immediate vicinity in order to form those strong communities and thereby ensure our own survival. We invented rules, mythologies, religions; justice was born. But was it ever a natural thing? Isn’t justice something artificial, designed to protect the bonds of relationship, which protects communities, which protect individuals. Are the implications of natural justice then, really the removal of the artifice of justice, which is removing justice itself? Is natural justice an oxymoron?
Natural anything usually has good connotations. Natural yoghurt (yeah, it’s not as sweet, but …), natural haircolour (yeah, but, nah, but …), natural disasters (ok, this is clearly not the right track). Anyway, the theory of natural justice is that the punishment is not based on an arbitrary rule-breaking, but rather on whatever the innate consequenses of the action which broke the rule might be. Instead of being punished for not doing your homework, natural justice says that you’ll simply be less prepared for the next test or exam you have. Instead of being told off for coming home too late, your punishment is to feel more tired the next day. What better way to teach kids about consequences than to let them experience them first-hand? While I applaud this sentiment, it’s too short-sighted to be effective for long.
Why? How? What could be more enduring and sustainable than something with natural right there in the title? There are three problems.
First, it may be natural and logical for the person who does something wrong to experience its negative consequences, but what about all the other people who are also affected by consequences for which they did not sign up? Shouldn’t there be some measure of protection for them? If justice was invented in the first place to hold communities together for their own survival, then doesn’t there need to be a protective element to its operation instead of something solely punative?
Secondly, does natural imply a response which is fair and reasonable? I remember as a child watching an electrician rewire a switch in our house. He was a friend of the family and didn’t mind a curious ten-year-old hanging around asking questions. He told me, “Keri, don’t touch that wire or you’ll die.” Natural justice says that if I had indeed broken the “don’t touch that” rule, death was a fair and reasonable price. A toddler who disobeys the “Don’t put that in your mouth” instruction would experiece very different consequences depending on whether “that” is a stone or rat-poison.
Thirdly, and most importantly, we’re talking about people. And sometimes the consequences of doing something are that it just Pisses Someone Off. Your favourite song is one that someone else dislikes, but you play it anyway, because it’s your turn to choose the music. You take the last jar of peanut butter off the supermarket shelf. You wear your favourite dress to a party and someone else wears the same one. This is perhaps the most dangerous thing about natural justice: it’s a gateway to supreme emotional manipulation. We do need to appreciate the consequences other people experience as a result of our choices, but very often this can boil down to Not Pissing Off Someone. Mother or Father. Or Boss. Or Teacher. Or Boyfriend. Or whomever. Along with those consequences, we need their context too. Natural justice does not recognise the human-ness, the people-ness of behaviour, wherein the negative effects of Pissing Someone Off are not a natural outcome from what might be, in actuality, a not-really-bad action.
For all these reasons, we need the artificial boundaries, the rules, the unnaturalness of discipline. We need something to stop us from creating situations which would harm ourselves or harm others. We need something to teach us more gently where the dangers are and to guide us away from them. And we need something to tell us when we’re actually ok, and in the right, and making reasonable decisions within reasonable boundaries.
But there’s a but. Here it comes … but the rules must have two important things going for them. They must be justified, by which I mean that they need to have a reason for being as they are. Whether we all fully understand the reasons or not, we still need to have confidence that they’re actually there. And that they’re fair, and this one is harder to get your head around. How can we design a system to be fair to all, when there are so many different contexts and needs and desires?
Rules need to protect everyone, not just a select few. Everyone must be in a better situation by themselves and everyone else keeping the rules, and this is a really hard thing to design. The good news is that we get to design them. We’re not following something natural here, we’re following something artificial, and for all its negative connotations, artifice can sometimes be a good thing. It means we’re in control. It means that if it’s not working, it can be changed. This doesn’t address the (huge, hulking, lightyears from straighforward) question of how or into what the system should be changed, but I think that to recognise that we, the people, have the ability and the mandate to think about those changes is a huge first step.
I deleted the rest of this post because solving the problem is going take considerably more space than there is here. But there will be more to come … 😉