ARC NO. 1 - GOVERNANCE
FROM RULES TO VALUES
Rules: laws, requirements or guidelines intended to govern conduct within a particular activity or jurisdiction. Rules are generally written and enforced by those who control the activity or jurisdiction. Because rules are top-down, one of the few means of enforcing rules is for those in control to deprive those being controlled of some privilege when rules are violated, i.e., to inflict punishment.
guidance grounded in shared community norms that are modeled by and maintained
within the community to guide its members toward unity. Values are reflected in
individual self-containment and inner poise. When values are violated it is a
community concern to be addressed by the community.
Rules are an important part of our everyday experience. They
govern how we are to conduct ourselves and help protect us from being violated
by others. We assume that our safety depends on rules, and it is true that
rules are often used for this purpose. But do the rules have to be imposed by
our legislators and others who are in control? Or, instead, can the rules be
community-based norms that are generally accepted and maintained by those who
live in a community?
When I use the term “values” to describe positive community-based norms, this refers only to positive values such as honesty, integrity, kindness, generosity, and the like, not negative beliefs, such as “greed is good” or “white superiority.” When we are guided by values we are moving toward harmony and unity. Using the term “values” only to describe positive community norms helps provide the necessary clarity for discussing punitive and unitive justice.
Rules in the Punitive Justice System
Rules are so pervasive that we take them for granted, without thinking about how they impact a system or if there is an alternative that might work better in certain cases. Many rules are effective in maintaining order and protecting safety. The rules that govern traffic on roads and highways are a good example; they apply to everyone and everyone benefits. There are also times when justice is achieved using rules to enforce compliance with positive community norms, such as rules written to overcome discrimination or inequality. Unfortunately, rules do not always produce fair results.
What we sometimes fail to realize is that in a system based on rules, rules may be used to legalize anything, whether it is moral or not, if those responsible for writing the rules so choose. Values, such as integrity, honesty, generosity and kindness, may guide the rule makers, but this is not necessarily the case.
An example is usury, charging a high rate of interest on money loaned. Despite the fact that usury was deemed immoral for centuries by all major religions, state legislatures in the U.S. have legalized usury by passing laws that abolish limits or raise the legal rate of interest so that high rates of interest, in some cases as much as 30%, are now legal. It is these new rules regarding usury that legalize "pay day lending" and other high interest rate abuses. Usury remains immoral, even when made legal.
We often speak of American exceptionalism being justified because we are a nation governed by the rule of law. But the Nazis were perhaps the most notorious example of how the rule of law can be used to legalize injustice and immorality. Being as committed to the rule of law as any contemporary nation, the Nazis never plundered, murdered or executed the Holocaust without first passing a law or issuing an order that made their acts legal. Form, i.e., the fact the Nazis adopted laws pursuant to some established procedure, trumped substance, i.e., the moral values that underpin the actions that the laws made legal.
When we consider the rules being enacted or already in place, it serves us well to measure each law by the moral standards that we, the community members, want our laws to embody. Whether or not our laws are moral is—or should be—an important element of our civic dialog and debate.
Values in the Unitive System
Communities in which shared community values prevail as the means of attaining peace and security need few rules. In fact, the fear of punishment is only one of the ways that the punitive system achieves compliance with laws and rules. The other is the values that members of the community bring to the matter. Many of us comply with laws because of the values that we hold, such as honesty, integrity and respect, that are reflected in our care for the well-being of others.
Values are a powerful means of bringing peace and security to a community, especially the value of lovingkindness which models that harming others is neither moral nor condoned. As we move toward unitive justice, we are moving away from rules and strengthening our commitment to shared community values as guidance for our actions.
Examples of community values include honesty, integrity, trust, generosity, courage, honor, commitment, respect and kindness. An important attribute of values is that they are morally consistent. Values are taught by example, and in this way become the shared community norms. They are maintained by mutual consent, by being an integral part of a way of life. There is no forced compliance with values. As they are reflected in the actions of community members, they inform others of who the people in the community inherently are and the level of humanity at which they choose to live.
The African system of Ubuntu is an ancient community-based system based on the shared values that are central to the traditional African understanding of humanness and ethics. Ubuntu embodies “compassion, sharing, reciprocity, upholding the dignity of personhood, individual responsibility to others, and interdependence by recognizing a common and shared humanity.” These values are also inherent in unitive justice.
Values are invisible, so they are recognized only by their results. When we see the results, we know that values are present and practiced. By what values manifest, we learn what values are. When we see what values do, it is clear that they transcend rules.
An example of the power of values and the moral consistency they reflect is found in the movement led by Mahatma Gandhi in India after World War II. The British Empire in India seemed impervious to attack until Mahatma Gandhi and his devotees used nonviolent civil disobedience against the Empire. Embodying the value of love that Gandhi recognized in the teachings of Jesus, he called upon his followers to follow the path of non-violence instead of answering harm with harm. They won without firing a single shot.
Strengthening our communities by strengthening the moral fabric of our communities will result in the need for fewer rules and fewer jails and prisons for those who violate the rules. In the video below, I describe lessons to be learned about Unitive Justice from two tragedies, lessons that are especially about values. At https://www.youtube.com/watch?time_continue=14&v=oC9kfZS-zCk. (12 min.)
State University College of Law, Institute for Comparative Law and
Nazis and the Rule of Law” ( July 11, 2012 updated February 22, 2013),
cited Nov. 8, 2013. It states, inter alia, “The capacity for human cruelty
and evil is practically unlimited. But, this individual level question often
misses the role that political, social, and legal inputs played in creating the
system. Legally, the Nazis had a fixation on records and legality. Committed to
the bureaucracy of death, they were scrupulous in making sure that their
actions were backed by the force of law.”
 J. A. Faris, "African Dispute Resolution: Reclaiming The Commons For A Culture Of Harmony," paper delivered at the Lawyers as Peacemakers and Healers: Cutting Edge Law Conference held at the Phoenix School of Law, Phoenix, Arizona, Feb. 22-24, 2013, 3.