Book Review by Henk Smidstra on Nicholas Wolterstorff’s book, Justice: rights and wrongs, Princeton University Press. 2008
I found this book by Nicholas Wolterstorff truly relevant in its discussion of the topic of discussion: justice, justice as inherent rights; it was at the same time difficult to read, often abstract and philosophical. The author writes the book to give clarity to this theory of justice, moved by memories of unresolved pain and suffering of injustice that he has seen on many victims’ faces as he worked on international human rights projects. Wolterstorff is a well published author and professor of Philosophy of a Reformed tradition of thought (Reformed epistemology) that I embrace; this of course added motivation for my delving into this book. Wolterstorff wishes, not to argue from certitudes, but to encourage dialogic pluralism on this vital topic of justice central to Scripture, and central to human experience. Wolterstorff explains: “My speaking up for the wronged of the world takes the form of this book, of doing what I can to undermine those frameworks of conviction that prevent us from acknowledging that the other [human being] comes before us bearing a claim on us, and offering an alternative framework, one that opens us up to such acknowledgment (p. IX). Wolterstorff’s book is thus an elaboration of his framework for justice which he names, justice as inherent rights, and he wishes to “undermine” confidence in a popular understanding of justice as right order. Wolterstorff will put his emphasis for the grounding of his theory of justice on the inherent value of human beings; and right order theorists place primary grounding on a “matrix…. of divine, natural, and human laws or objective obligations for the ordering justice of political community” (p.29). The issue of grounding is in focus throughout the book.
Wolterstorff provides many pages of exegetical and biblical support for justice as inherent rights. Natural human rights as inherent rights, suggest Wolterstorff, are a bestowal of worth and dignity on each human being by God. Wolterstorff discusses scriptural emphasis on the absolute value of, every human being, functional, or dysfunctional, healthy, or unhealthy; all are precious in God’s sight. Wolterstorff measures other philosophical frameworks according that standard. For example, utilitarian pragmatism cares not for human rights; and Kantian deontology can’t be inclusive because many human beings are not able to be perfect, objective calculators of rationality; duty is not a ground for inherent rights, the inherent worth of being human is. Human beings are image bearers, loved by God unconditionally in Christ. God has rights too. He is not the Stoic impersonal force of rationality; God has subjective rights, and loves, has compassion; he also gets angry when he is wronged. Forgiveness is central in Wolterstorff’s presentation; So much for the Stoic grounding of justice in the good life of conflict avoidance and tranquility. Forgiveness does not violate the moral order. Forgiveness, though, is only possible for those who are wronged…you can’t forgive for someone else. Because God forgives, we forgive those who wrong us. Because God gets angry when wronged, we too have a right to be angry and have a right to voice the wrong; and the person who did the wrong has an obligation to honour our claim for justice. However, it is love that modulates our responses and claims for justice as we follow the “…ultimate maxim,” the command to love one another (p. 226). It is one thing to say all have rights; it’s another to honour these rights.
Another influence on the understanding of justice by Christians today is what Wolterstorff calls agapism, influenced by S. Hauerwas and A. Nygren. Wolterstorff suggests that they de-justicized the New Testament by suggesting that New Testament agapic love has trumped justice. Justice, it is said, is not a norm for us today. But without a lexicon for justice, injustice becomes supressed and invisible, and the weak and vulnerable are at risk of being trapped in abusive and unjust relationships and structures. At the same time, states Wolterstorff, “large swaths of American Christians” today claim that retributive justice was not supplanted (p.1). Justice as right order theorists, Joan Lockwood O’Donovan and Leo Straus, are mentioned by Wolterstorff, as also focussing exclusively on retributive justice (or rectifying justice) in the Old Testament. Being rigidly anti-modernist, right order theorists also oppose justice as inherent rights, claiming that rights-talk is merely a product of Enlightenment thought. Wolterstorff, however, outlines a genealogy of natural human rights going back to the Old and New Testaments, and through the early church fathers. One thing is clear from the Old Testament readings, suggests Wolterstorff, that Israel’s religion was a religion of salvation, not of contemplation; it reveals a constant prophetic sensitivity to injustice with focus on the plight of the poor and the needy, the widow and the orphan, the alien and downtrodden. Israel’s’ religion was not a religion of salvation from this earthly existence, but a religion of salvation from injustice in this earthly existence (p.79, emphasis mine). Jesus fulfilled the Old Testament expectations placed on him as the Messiah, to be the one anointed to bring the gospel of Justice; in his life Christ certainly demonstrated unconditional love to all with a focus to inclusion of the excluded and wronged by the powerful in the land. The Gospel announced the new era of radical inclusion, indicating the inherent worth of everyone. The gospel is the Gospel of the justice of Christ. This historical, existential rule of Christ implicated and challenged unjust structures and life circumstances, not just salvation for inner spiritual renewal. The death of Christ is not the end of the rule of Shalom, but a central episode in a larger story of victory for the cause of justice (p.129).Thus God continues to be committed to justice and its causes and holds us as humans to account to himself for doing justice. The exegetical and theological sections of the book are my favourite parts.
The book contains a wealth of theoretical material on justice and rights, but it is also here that I have some concerns. At the outset Wolterstorff states clearly that he will write only about primary justice, namely commutative and distributive justice (in other words, restitution, compensation and social justice). He emphasises that he will not discuss rectifying or corrective justice, or more popularly, retributive justice (criminal justice). That would be too complex, he claims, discussing “the entwinement” of the two concepts. I would have expected him to identify, retributive justice, as secondary justice, as a correlative to primary justice. It is traditional, states Wolterstorff, to classify justice, as distributive justice and commutative justice on the one hand, and rectifying or corrective justice on the other. Rectifying or corrective justice becomes relevant when there have been breakdowns in distributive and commutative justice. That to which one has a right is a life-good; that which is “due” one on account of one’s wrongdoing is a life-evil. It is a retributive permission-right to be angry with the one who did the wrong, “…and see to it that hard treatment is imposed on him” (p.26). One wonders what Wolterstorff means by, “hard treatment? Sue the pants of them? Send the wrongdoers to do some hard time in prison? Wolterstorff mentions restorative justice, but only in a footnote. I was left frustrated with his failure to declare himself. He does live in a country which is a world leader in building prisons and locking people up, roughly two million human beings. One would expect a comment about that. The new Canadian crime bills would seem to indicate that Canada will follow in the retributive footsteps that America took in its war on crime and war on drugs. What will rectifying and corrective justice look like as the state, as it is so often put, carries out its main task of punishing the wrongdoer? In this climate of politicized opinion and law and order crime control, a public dialogue on justice as inherent rights applied to rectifying” justice is vitally necessary.
Wolterstorff does not develop clearly how retributive rights within a primary justice arena would actually be practiced. In my opinion, given the crisis in criminal justice thinking today, the omissions are serious. Wolterstorff uses the term “retributive rights” very often, and I wish he had used another term; it is too open to misinterpretation in the punitive populist law-and-order mind-set of today. our minds can easily get carried away with what retribution, “justice served,” to a wrongdoer or criminal is all about: “throw the book at them, have them feel the full force of the law, lock the “scum” up and throw away the key”…where is the justice in that? In my opinion, not explicitly integrating rectifying justice within his primary justice as inherent rights model is a weakness in the overall framework of justice in this book.
Wolterstorff admits that a good understanding of primary justice will, “…cast considerable light on retributive rights” (p.287); the two intertwine (pp. 106,241). In fact he can imagine primary justice as inherent rights without secondary justice; but not the other way around. He leaves up to us the task of integrating the valuable perspectives that he has given to us about primary justice, to apply them to retributive rights and rectifying justice; my hope is that this book will trigger our imaginations in the way of shalom, not the way of fear- based retribution in a war on wrongdoers. I think that pro-active social justice and restorative conflict resolution would be consistent with his theory. Primary justice as inherent rights, according to Wolterstorff, refers to an interpersonal situation; justice is present when persons are related to each other in a certain way, rights are normative social relationships. Justice is grounded in inherent human rights as bestowed by God. Rights are claims to the good of being treated in certain way; they are claims to life-goods for our lives to flourish as human beings. Rights are not possessions in of individualistic, possessive, liberal, consumer model; “Rights consist of those entities to which one stands in relation of having a right to them” (p.25). Inherent human rights, I say, may not be compromised by a hermeneutic of inherent prejudice that the other is up to no good because that human being is a young-black-male wearing a grey hoodie. We are all co-human beings created equally created by our creator sharing one created world. The moral vision of Scripture recognizes human rights; it “…presupposes the understanding of well-being as the well-going life, the flourishing life….the ultimate maxim of the moral vision of Scripture is, of course, the love command (p.226). Wolterstorff is convinced as a matter of faith that, “…there are natural human rights. Human beings, all of them, are irreducibly precious” (p.361). It is hard to imagine Wolterstorff turning Janus-faced in a right order theorist fashion towards rectifying justice with a punitive law-and-order posture. This book is an indispensable book for dialogue, and it will be imperative to apply the insights gained on justice as inherent rights concretely in our communities and countries to effect eirene, the New Testament counterpart word for shalom.