Towards a Natural Justice of Rights Relationships

Abstract

Most people growing up learn to recognize two fundamentally different ideas of justice: the justice of and the justice of The justice of is the more familiar goal of current criminal law, with its normative lines in the sand and penalties for transgression. The justice of is not, however, the only kind of justice. There is also the justice of relationships. Neither kind of justice can exist without the other, but the two are not equal. Indeed, a mere of rights is a very poor proxy for a relationship. For a social species such as ourselves, having a psychological repertoire replete with emotions sparked by human interchange, it is relationships not that people really live for. Rights are at best a partial means to relationships, a way of providing background conditions in which relationships can be established and fostered. Ultimately, however, no depersonalized system of and rules can mediate, except in a crude and clumsy way, the intricacies of interactions among persons. As fundamental legal concepts, alone produce only a poor simulation of actual relationships Unlike the rigid, one-size-fits-all justice of rights, the justice of 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, 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 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 relationships holds it is ultimately more important to mend tears in the social fabric than to demand 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 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.