3.1.5 Retributive justice and the rule of law
Back to 3.1.4
Let us begin to address retributive justice by bringing in again the two Hebrew words for justice we studied in Unit 2.
As the last screen brought out, tzedakah has a broad, society-wide sense, which ‘distributive justice’ captures quite well.
In contrast, mishpat refers primarily to the specific practice of judgement in court. As such, its meaning is close to ‘retributive justice’. Indeed Jonathan Sacks identifies the two:
Mishpat means retributive justice. It refers to the rule of law, through which disputes are settled by right rather than might. Law distinguishes between innocent and guilty… Few if any civilizations have robed law with greater dignity than Judaism. It is the most basic institution of a free society… A law-governed society is a place of mishpat.1
According to Scripture, both tzedekah and mishpat are necessary. Similarly, for a just society, there must be both distributive justice and retributive justice.
In order to think about retributive justice, let us focus on a real case.
Since the 1970s, Bangladesh has developed a huge garment-making industry. Yet it remains a very poor country. In 2013, typical wages for clothing workers in Bangladesh were between the minimum wage of c.£26 per month (3,000 taka) and £40 per month.2. The trade unions in Bangladesh have argued for a minimum wage of £50 per month, and one organization, the Asia Floor Wage campaign, has calculated that a ‘living wage’ for such workers in Bangladesh would be £86 per month (10,000 taka).3
In April 2013, an eight-storey building in a district of Dhaka, the capital city, collapsed. About 3500 people were inside, most working for garment-making companies. 1127 people were killed, according to the official toll, making it one of the most deadly industrial disasters in history.4
It was reported that the building’s owner had received permission to build a five-storey building but had added three more floors illegally. The day before the collapse, some workers had reported to managers that there were large cracks in the building, but managers had ordered their employees to work. Some major Western clothing retailers, including Benetton, Mango, Matalan and Primark, had contracts with companies working in the building.5
The building’s owner certainly had a duty of commutative justice to the garment companies to ensure that he did not rent to them an unsafe building. He was arrested and, at the time of writing, was awaiting trial.
The tenant companies certainly had a duty of commutative justice to their workers not to employ them in unsafe conditions. Some of their personnel also were arrested.
The Western companies which employed those Bangladeshi companies as contractors indirectly had the same duty as the Bangladeshi companies. In a phrase brought to prominence by Pope John Paul II, they were the ‘indirect employers’ of the workers in the building.6. On this basis, so too were the retail consumers who bought clothing made in that building.
The Dhaka political authorities, who had permitted only a five-story building, should have made sure the law was enforced. They were reported as blaming the owners and builders “for using shoddy building materials, including substandard rods, bricks and cement, and not obtaining the necessary clearances”.7
Who was responsible for this disaster? What legal consequences should follow?
We saw in the Hebrew Scriptures that mishpat, the practice of judgement in court, was a main task of the rulers of ancient Israel (2.2.4). This was in order that poor and afflicted people and victims of violence could come to a court and have judgement handed down that would vindicate them against the perpetrators of injustice.
While there are obvious and great dissimilarities of context and content, the tragedy in Bangladesh has some echoes of one passage from the prophet Jeremiah that we read in Unit 2 (2.2.4):
13 Woe to him who builds his house by unrighteousness,
and his upper rooms by injustice;
who makes his neighbours work for nothing,
and does not give them their wages;
14 who says, ‘I will build myself a spacious house
with large upper rooms’,
and who cuts out windows for it,
panelling it with cedar,
and painting it with vermilion.
15 Are you a king
because you compete in cedar?
Did not your father eat and drink
and practise judgement (mishpat) and justice (tzedakah)?
Then it was well with him.
16 He judged the cause of the poor and needy;
then it was well.
Is not this to know me?
says the Lord.
This text was addressed to a political ruler, that is, someone who had direct responsibility for judging the cause of the poor and needy. What it underlines is the Hebrew prophets’ vision that the basic purpose of what happens in the law court is to bring justice on behalf of those who are in desperate need because they have suffered injustice. There were many such people following the Dhaka disaster: thousands of already poor families who were left without a wage earner (perhaps the only one) and, among survivors, many amputees.9
No doubt the question of legal responsibility following this huge disaster is complicated. Whether cases are simple or complex, however, a public (and thereby transparent) legal process is needed in order to assign responsibility and vindicate victims. To make sure that this happens is a major responsibility of governments.
As noted in Unit 1 (1.3.1), this is called ‘retributive’ justice because, after a guilty verdict is reached, a judge imposes a punishment which, in a particular sense, ‘re-tributes’ or ‘pays back’ to the perpetrator what is due for his or her crime.
But what is this particular sense? The crucial point here is that the penalty must be proportionate to the crime committed. The Catholic Catechism says, “Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense” (#2266).
What ‘proportionate’ means here is both intuitively clear to most people and not easy to explain. Consider, as an example, a long list of tasks that you need to do and a tin full of biscuits. Supposing you decide that, whenever you have completed three tasks, you will eat a biscuit. This means that, while the number of tasks you complete and the number of biscuits you eat are not equal, they are proportionate, because the number of tasks will always be three times the number of biscuits. Putting this formally, two magnitudes vary proportionally if they vary at the same rate as each other.10
A range of punishments from light to heavy is proportionate to the crimes for which they are imposed if they are widely seen as corresponding to the seriousness of those crimes.11
In the case of the Dhaka disaster, proportionality would mean this: once a court has reached a conclusion on what responsibility the different parties have for what happened (that is, the owner, the garment companies, the builders, etc.), the severity of the penalties they each receive needs to correspond with the gravity of that responsibility. To speculate, if the judgement against the owner implies that he is roughly four times as responsible as anyone else, his sentence should be four times as severe as any other sentence.
The specific kinds of penalties imposed (whether prison terms, fines, or forms of work in the community, among others) should then be in line with what is standard in Bangladesh. This said, punishments may never be ‘cruel or unusual’, to use a phrase that, since the seventeenth century, has rung out in opposition to excessively severe sentencing.12
Making judgements about what sentences ‘fit’ crimes can be extremely difficult – but it is also immeasurably important for the common good. If judges get sentences wrong, there can be a widespread sense that justice has not been done, indeed outrage and anger. When this happens, trust in public courts can be lost, provoking people to ‘take the law into their own hands’.
This screen only gives a brief introduction to how to understand retributive justice. We shall study it further in Unit 6. At this point, however, it will be valuable to read the short section in the Compendium on this issue. It brings in several highly important points, not least that the practice of criminal justice must aspire to restore relationships and, therefore, to enable those who have served sentences to live fully in society again (#403). It also outlines the Church’s teaching about the death penalty (#405).
Compendium, ##402-405 (Chap 8, part III, sec. e.)
The rule of law
An earlier screen in this unit (3.1.3) pointed out that, while the power to enforce law means that government can actually do justice, this same power makes government dangerous because it can be used to do great injustice. This is most obvious when we are thinking about the power of judges to impose punishments. If judges act arbitrarily, or are bribed, or act to protect themselves or their own friends, no-one who comes before the court is safe. Rather, far from penalties being handed down only after a true guilty verdict and being proportionate, judges can do great injustice by fining people or locking them up for crimes for which they were not responsible – or by acquitting them even though they are guilty.
It is this sort of danger that lies behind the principle of ‘the rule of law’. This insists that those who participate in governing must themselves be subject to the same law. They are not ‘above the law’ – whether they are legislators making law, civil servants implementing what it requires, judges and juries practising judgement in courts, or the police enforcing it directly. Rather, government must be conducted ‘according to law’, not by arbitrary decrees that don’t apply to the rulers.
While the principle of the rule of law is easy to state, there is a great challenge to make it a reality wherever the rich and powerful can buy their way out of trouble and the courts can be diverted from just judgements by bribery or special interests. Historically, it is the principle of the rule of law which has led to a very clear recognition that it is best if the court system (the ‘judiciary’) is independent of other ‘branches’ of government. In other words, only if the judiciary operates in a way that is separate from both the government of the day (the ‘executive’) and of parliament (the ‘legislature’) can the rule of law be enforced. Without such independence, the courts will be too easily influenced by those with political power.
The documents of CST do not speak at length about the principle of the rule of law, perhaps because it is, at least in theory, now very widely accepted. However, Pope John Paul II endorsed it explicitly in Centesimus Annus, the encyclical that summed up CST on the hundredth anniversary of the publication of RN in 1991. Having spent most of his life under Nazi and then Communist regimes in Poland that did not practise the rule of law, Pope John Paul no doubt had a sharp sense of the importance of this principle. Referring back to RN, he said:
[I]n one passage of Rerum Novarum [Pope Leo XIII] presents the organization of society according to the three powers – legislative, executive and judicial – something which at the time represented a novelty in Church teaching. Such an ordering reflects a realistic vision of humankind’s social nature, which calls for legislation capable of protecting the freedom of all. To that end, it is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the “rule of law,” in which the law is sovereign, and not the arbitrary will of individuals. (Centesimus Annus, #44)13
Were you familiar with the meaning of ‘the rule of law’ before reading the above?
Can you think of real examples that show the rule of law operating – i.e. in which powerful political figures have been brought before a court and convicted, despite their status and access to wealth?
Can you think of other examples which appear to show the rule of law not operating?
Even though there is not much directly on the rule of law in CST, it is fundamentally important that the rule of law does operate if we are to have a just society.
We can sum up simply what we have learned on the last two screens: the proper role of government is to do both distributive justice and retributive justice.
The rest of this unit will focus primarily on distributive justice. We shall come back to retributive justice in Unit 6.
End of 3.1.5
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Syed Zain Al-Mahmood, ‘Bangladesh’s garment industry still offers women best work opportunity’, The Guardian, 23 May 2013 , accessible 10 July 2013 at: http://www.guardian.co.uk/global-development/2013/may/23/bangladesh-garment-industry-women-opportunity ↩
Clare Lissaman, ‘Real cost of cheap clothes’, The Tablet, 4 May 2013, p.8 ↩
See CNN, ‘Death toll rises from Bangladesh building collapse’, 13 May, 2013 (accessed, 21 June 2013, at http://edition.cnn.com/2013/05/12/world/asia/bangladesh-building-collapse). According to Peter Hough, Understanding Global Security (Routledge, 2nd ed., 2008), p. 215, only two previous industrial accidents have had a higher death toll, those at Bhopal, India, in 1984 and Hineiko, China, in 1942. According to the BBC website, the Bangladeshi factory collapse was the sixth most deadly industrial accident; see http://www.bbc.co.uk/news/world-asia-22502150 (accessed 10 July 2013). ↩
Lissaman, ‘Real cost’, p.8 ↩
Serajul Quadir and Ruma Paul, ‘Bangladesh building owner faces murder complaint over collapse’, Reuters, 5 May 2013 (accessed, 21 June 2013, at http://www.reuters.com/article/2013/05/05/us-bangladesh-building-idUSBRE94403U20130505) ↩
The translation is the NRSV, except that v.15 is revised to reflect the meanings of misphat and tzedakah more literally, as indicated. The NRSV has “do justice and righteousness?” ↩
See Associated Press, ‘AP photos: Bangladesh collapse left many amputees’, 20 June 2013 (accessed, 21 June 2013, at http://bigstory.ap.org/article/ap-photos-bangladesh-collapse-left-many-amputees). ↩
According to the New Shorter Oxford Dictionary, two (or more) things are proportional if they are “corresponding in degree, size or amount”, and proportionality is the “quality, character or fact of being proportional”. In general, ‘proportional’ is used in mathematics and ‘proportionate’ is not. However, the latter is defined as ‘proportional’, and also as ‘corresponding’ and ‘appropriate’. This suggests that ‘proportionate’ has a wider range of meaning, namely of correspondence of magnitude that can’t easily be captured in mathematical quantities. ↩
Here is one illustration from practice in England. Arson that is “reckless as to whether life endangered” typically carries a prison term of two to six years (depending on mitigating circumstances, etc.) and arson “with intention to endanger life” attracts a term of seven to ten years. If these ranges of punishments, when compared and contrasted with those for other offences, are generally held to correspond in seriousness to the different crimes (to ‘fit’ them), they are proportionate. See Crown Prosecution Service, Sentencing Manual, revised 20 March 2013, accessed (21 June 2013) at: http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/. ↩
Originally in the English Bill of Rights of 1689, this phrase became more famous through inclusion in the United States Constitution (1791). “Cruel, inhuman or degrading” replaces it in the UN Universal Declaration of Human Rights (1948), which we shall look at later in this unit. ↩
While Pope John Paul II referred back to RN in this statement, what he said reiterated more directly Pope John XXIII, Pacem in Terris, ##67-68. ↩