Towards a Natural Justice of Right Relationships
HUMAN RIGHTS IN PHILOSOPHY AND PRACTICE, Burton M. Leiser and Tom D. Campbell, eds., Ashgate Publishing
18 Pages Posted: 25 Oct 2001 Last revised: 9 Apr 2009
Most people growing up learn to recognize two fundamentally different ideas of justice: the justice of "rights" and the justice of "right relationships." The justice of rights is the more familiar goal of current criminal law, with its normative lines in the sand and penalties for transgression. The justice of rights is not, however, the only kind of justice. There is also the justice of right relationships. Neither kind of justice can exist without the other, but the two are not equal. Indeed, a mere "relationship of rights" is a very poor proxy for a right relationship.
For a social species such as ourselves, having a psychological repertoire replete with emotions sparked by human interchange, it is relationships not rights that people really live for. Rights are at best a partial means to right relationships, a way of providing background conditions in which right relationships can be established and fostered. Ultimately, however, no depersonalized system of rights and rules can mediate, except in a crude and clumsy way, the intricacies of interactions among persons. As fundamental legal concepts, rights alone produce only a poor simulation of actual right relationships
Unlike the rigid, one-size-fits-all justice of rights, the justice of right relationships does not consist of fixedly norm-based "entitlements." It is, by contrast, intrinsically indefinite so as to provide individualized justice that is tailored to particularized human beings and the uniquely personalized connections among them. Broadly, right relationships are relations in which each (or all) seek, without abandoning themselves, to be attentive and responsive to the needs and emotions of one another, quite apart from considerations of entitlement. The important "negative" markers of right relationships are that they are free of systematic oppression, exploitation or manipulation. That is, a relationship is not "right" if participants seek to overbear in power (oppress), to overreach in resources (exploit), or to mislead for selfish advantage (manipulate).
The ideal of right relationships holds it is ultimately more important to mend tears in the social fabric than to demand rights within it, better to respond to harmful acts by making things right, not merely by making things "even." It is the justice that fixes hurts with healing, instead of just inflicting more hurt in return. By contrast, when people insist mainly on rights, letting the chips fall where they may, the result is rarely justice but, instead, the endless series of affronts, reprisals and retribution that we now see all around.
Drawing on the work of Carol Gilligan and others, this article sketches how the law might begin to actually resolve social conflicts instead of merely subliminalizing them - pushing them beneath the surface by dint of superior force. It gives particular attention to the case of the criminal law, in which the justice of right relationships would require that the primary effort be not to harm (punish) the harmdoer but, rather, to reestablish the harmdoer in a network of relationships that will conduce to a law-abiding life.
Keywords: rights, relationships, right relationships, crime, criminal law, jurisprudence, ethic of care, care, norms, punishment, justice, restorative justice, retribution, rule-based systems
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