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Unitive Justice

  Lovingkindness in action. 

5. From Judgment to Insight



Judgment: considered decisions intended to result in sensible conclusions, but often tainted by preconceived perceptions believed to be real.

Insight: a discovery of new information about the inner nature of an act or events; an act of discerning deeply that reveals new information and new possibilities that were not previously seen.

Punitive Justice and Judgment

A punitive system relies on judgment—who is with us and who is against us? Who is good or pretty, who is evil or ugly? The problem is that judgment is often tainted by preconceived notions reflected in the projection of a negative assessment upon another person or thing, along with the belief that it is real, and not merely perceived. We often judge another to be guilty, lazy, ugly, or undesirable without realizing we are judging, or that we are seeing the speck in another’s eye while being blind to the log in our own. [1] As judgment proliferates, separation from one another deepens and human relations deteriorate.

Despite its flaws, the punitive system of justice would not exist without judgment—multiple levels of judgment. We call those at the pinnacle of the system “judges.” They first judge the accused, then, if found guilty, they judge the punishment that they deem proportional. They judge each issue raised on appeal. Parole boards judge when it is time for a prisoner’s release and probation officers judge if a violation has occurred post release. Often the public continues to judge those who bear the label “criminal,” long after their debt to society has been legally paid.

Judgment is a flawed tool for getting at the truth, even for those who judge as a profession. How many wrong decisions do our judges and juries make every day in courtrooms around the nation? About 150 death sentences have been commuted since 1973 because evidence later proved these people were innocent. There was an average of 3 exonerations (i.e., cleared of blame) per year from 1973-1999, and an average of 5 exonerations per year from 2000-2011.[2] This alone is reason to think twice about how flawed our judgment can be.

It is hard to avoid asking whether a judge or jury, hearing bits and pieces of evidence molded by attorneys whose aim is to win by making the other side lose, is the best way to judge guilt and innocence? Is this a reasonable way to make decisions about life and death?

Modern brain science provides evidence that judgment is not as reliable as we once thought it was. This science is beginning to impact how some lawyers practice law, especially in the field of Collaborative Law.[3]

Unconscious programming that lies in the recesses of the mind, like an invisible hand guiding where we direct our judgment, may influence our reactions to events, even when we think we are being completely rational.[4]  When we are in the realm of judgment, we are treading in tricky waters, often beyond reason, as our perception distorts what we see.

This can lead to an insidious use of judgment to justify the use of force or abuse to impose control by those who are dominant, while at the same time, judging those being controlled as deserving of the abuse. Judgment permits us to project blame for our intentional actions on those whom we harm, applying the double moral standard inherent in proportional revenge, the guiding moral principle at the heart of punitive justice (described in Arc No. 12, From Proportional Revenge to Lovingkindness). We see this demonstrated by the guards in the Stanford Prison Experiment video when they blame their abusive conduct on the prisoners whom they are abusing.

In the justice system, there is a growing awareness that using an adversarial process to address conflict can have a negative impact on mental and cognitive resources, triggering a fight, flight, freeze or appease response in those engaged in the process. If, instead, we suspend our preconceived judgments and create an environment that supports thinking and reasoning instead of the fight or flight emotions, the people having the conflict are often able to resolve their conflict themselves, and do so amicably. Insight opens the door for this to occur.

Unitive Justice and Insight

The human mind is complex and intriguing, not linear in any respect. It is as though the mind is a house with many rooms, some that are easily and routinely accessed and some that seem to lock the thinker in, making escape difficult once they have been entered. But some rooms are special and powerful and may be entered only when the thinker is in a particular state of mind. These inner rooms are where we encounter insight.

Insight is a mental portal that suddenly leads to inner sight. This inner sight accesses knowledge and understanding that was previously inaccessible and which paves the way for qualitatively different thinking or actions. Insight is forward looking, while judgment keeps the focus on the past. By focusing on achieving retribution for what happened in the past, judgement projects the past into the future, binding the offender’s future to his past acts. The new understanding that comes with insight reveals new possibilities, opening the door to a new future.

Insight is achieved through discernment or “mindful presence” that leads to understanding people, issues and contexts free of the projection of one’s own judgment. Discernment leads to understanding the cause of one’s own pain and the pain of others, letting it be acknowledged and perhaps seen in a new way.

Getting to insight requires peeling off layers of judgment. The circle process designed to uncover the underlying brokenness is designed to support this journey. A first step is to give those who are in a conflict the space in which to consider what they have done, without being labeled or judged. This is an empowering gift. Experiencing the process as safe enables the participants to be open, present and honest; vulnerable instead of defensive.

With insight, participants might see how they meet their needs in ways that perpetuate the brokenness, even indirectly or unconsciously. Living in a gated community, for example, may indirectly contribute to the violence on the other side of the tracks by intentionally keeping that violence out of one’s view and therefore making it seem unimportant or not worth the time it takes to join those working to end it.

The moment of insight in the circle process opens up new possibilities for resolution that were not previously seen, or perhaps were not even possible to imagine when getting even or retribution was the goal. It is when participants recognize their shared power and connection, seeing a future in which they can, in some way, go forward together. This is what paves the way to mutually beneficial action.

A successful circle process has another benefit: it avoids the extensive and expensive investigations that are required in a punitive system to attempt to discover the truth because insight is lacking. Take a school fight, for example. When a fight erupts in a classroom the students in the fight are removed and an investigation is begun. The students who fought are interrogated. Students who were present when the fight broke out might be asked to fill out forms, stating what they saw happen. Staff must conduct this investigation and it can easily lead to faulty conclusions based on inaccurate and incomplete information, and this may cause more harm. One or both students might be suspended and miss time in class, while the underlying discord continues to fester.

If, instead, the students are given the opportunity to engage in a circle and they know the space is a safe place to be truthful and even vulnerable, they may come to the insight needed to identify and address the root of the problem. For example, in the safety of a recent circle, two boys who fought in gym class quickly got to the root of their conflict. They were both school athletes and what the one who was less able wanted was the friendship of the more able athlete. When his overtures to friendship were rejected, the less able athlete reacted by harassing the more able one. The rejection of the less able athlete escalated, increasing his embarrassment and anger. The deepening wedge between them led to the fight.

When this was sorted out and they each owned up to how they had contributed to the escalation, they agreed to make a point of playing on the same teams in gym and to be helpful to one another in ways that fit their particular situation. This circle took about thirty minutes. With the students’ consent, their signed agreement was shared with the gym teachers who were asked to support the students in living into their agreement. This one small step represents a cultural sea change in how these two students experienced justice. The insight they gained in the circle process made it possible.

Insight is equally necessary to achieve peace at the international level. Years after the end of the Vietnam war during which Robert McNamara served as Secretary of War, McNamara met with the Vietnamese military leaders who led the fight against the Americans. In the documentary "The Fog of War" McNamara describes this meeting and how it became clear that both sides marched into that war blinded by their own projections and mistaken beliefs about the other. McNamara realized that, if the Americans had better understood the goals of the Vietnamese, that war would not be part of our history and its enormous cost would have been avoided. If they had sought insight instead of relying on judgment, it could have changed the course of history and saved millions of lives. (“The Fog of War” may be viewed at  YouTube.)

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The 12 minute video below, "How to Meditate in 12 Minutes," guides you through a short mindfulness meditation (https://www.youtube.com/watch?v=F0jedwTzIJg). This type of practice helps transition the mind from busy-ness to discernment and insight.

[1] “How can you think of saying to him, 'Brother, let me help you get rid of that speck in your eye,' when you can't see past the board in yours? Hypocrite! First get rid of the board, and then perhaps you can see well enough to deal with his speck!” Bible, Luke 6:42 (Living).

[2] Death Penalty Information Center, at http://www.deathpenaltyinfo.org/FactSheet.pdf, cited Sept. 20, 2015.

[3] Pauline H. Tesler, Goodbye Homo Economicus: Cognitive Dissonance, Brain Science, and Highly Effective Collaborative Practice, Hofstra Law Review, Volume 38, Issue 2, Article 7 (2009) http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1785&context=hlr .

[4] Gabor Maté, Scattered (Penguin Group, a Plume book, 2000), 250.