The Fetzer Institute’s mission is “to foster awareness of the power of love and forgiveness in our global community.” Fetzer planned to convene 16 advisory councils comprised of world class practitioners in various professions, from social scientists to artists, and from lawyers to athletes. Fetzer assigned me six professions and asked me to research the very best candidates to sit on these councils, including recommendations for chairperson and convener for each. I composed a brief biography for each candidate, at least 60 candidates for each council. They then asked me to research trends in these six professions and write an executive summary for each showing how these trends bear on Fetzer’s mission.
EXECUTIVE SUMMARY Fetzer Advisory Council on Law Professions David Vermette December 3, 2010Law is a rules-based system that regulates social relations between individuals, or between theindividual and the community. Law is divided traditionally into the spheres of public (international,constitutional, administrative, and criminal law) and private (property, domestic relations, contract, andtort law). The historical bases of systems of law differ among the nations of the world. Some of the morewidespread systems include those based on English Common law which are found mainly in theAnglophone countries; Civil law, based on the principles of ancient Roman law, found in much ofEurope, in Latin America, and parts of Asia; and Shari`a law, based on the Quran, found in the Islamicworld. The law professions include legislators who author and officers who enforce the law; judges orjustices who adjudicate cases and interpret the law; attorneys who advise and advocate for individuals,the State, or other bodies; scholars and professors who teach and theorize about the law; and a vast arrayof professionals such as paralegals and administrators who provide essential support.As a designedly impersonal system, most often characterized as an adversarial process, the lawprofessions do not seem to be a natural fit for the Fetzer Institute’s mission of fostering love andforgiveness. The purpose of law, some voices might claim, is to punish wrongdoers or to balance outinequities and not to forgive or to demonstrate compassion. However, over the past quarter-century newmodels of law have appeared which hold out hope for the Fetzer Advisory Council (FAC)on Law Professions.Law and JusticeThe idea of law is bound up with the notion of justice. In Plato’s Republic, Socrates entertains andrejects the idea that justice means “giving to each what is fitting” or due. And yet this notion of giving toeach what is due – be it an individual, a corporation, or a nation – remains the cornerstone of Westernnotions of justice. This is evident in the traditional personification of Justice: a blindfolded womanholding a balance with which she weighs what is due to each, while she remains blind to the personhoodof the parties involved. She also carries a sword symbolizing the coercive power of the law. But has thisancient notion of a blind balancing act, enforced at sword point, brought healing, peace, love andforgiveness to our world?To forgive does not mean to forget the injustices done to victims by perpetrators of crimes, nor, on theinternational scale, is it to gloss over the consequences of the injustices of the past. It serves ourcommon humanity ill to forget the Holocaust, the African slave trade, or the more recent events inRwanda or the former Yugoslavia. To forgive is not to pass over, but to reintegrate and to purify thissuffering into the body of our common humanity. The balancing of claims, whether it involves oneperson against another, or a family divided against itself, or one nation against another, can result in acalculus of human suffering the net result of which is a negative number. Healing cannot occur in anatmosphere of retribution, nor can it exist in a system that remains blind to personhood. The only meansby which a new model of law and justice may emerge is to replace the notion of balancing competingclaims, of giving to each what is due, with newer models that speak to restoration, collaboration, andhealing, models that allow Justice to peek from underneath her blindfold, models that take into accountthe systemic nature of injustice in society, and that respect the wholeness of the human person as a beingwith a body, mind and spirit.
Such a notion of justice may be found in the Judeo-Christian traditions. In the Greek translations of theHebrew Scriptures, as well as in the Christian Scriptures called the New Testament, the same Greekword – dikaiosyne – translates the related Hebrew words tzedakah and tzedek. The latter means“righteous judgment or justice,” while the former refers to “charity, generosity or benevolence freely-bestowed,” particularly on those less fortunate than oneself. This notion of justice, in bridging these tworelated Hebraic concepts, is not about rendering what is due, but it is a justice concerned withcompassion, rooted in benevolence, and bestowed from a position of abundance. Rather than a balanceachieved through an impersonal or mechanistic system, this notion of justice arrives at the common,underlying humanity of the parties involved in legal disputes.From a Retributive to an Attributive Model of Law and JusticeThe move to foster love and forgiveness in the legal consciousness of the emerging global communityseems to involve a shift from a retributive to an attributive model of law. Mechanistic bureaucracies,“blind” justice, the adversarial process, as well as the requirement to assign blame, are characteristic of aretributive model. An attributive model is based on attributing a shared humanity to victims of crime andto criminals; to both oppressed and oppressors; to both poorer and richer nations. Throughunderstanding the systems that create and maintain habits of choice that have evolved into paradigms ofdominance and oppression – either within the minds of individuals who perpetrate crimes or within thecollective consciousness of States that commit the atrocities with which the pages of history are stained– we may arrive at the possibility of healing in ourselves and in our world. This new, attributive modelis emerging in the legal profession in several forms:Holistic Law focuses on the entire context involved in a legal issue or dispute. It considers theindividual’s place in this context, the effect of the dispute on the community, as well as on the lawyer’sown role. The practice of Holistic law sometimes incorporates spiritual practices, enabling the lawyer toapproach the issues from an integrated, centered consciousness. Holistic Lawyers also tend to seek abasis of commonality between contending parties rather than viewing them as irreconcilably opposedinterests.Restorative Justice employed most often in criminal law, frequently in the context of juvenile offenders,recognizes that crimes are not merely offenses against the State but against individuals, their familiesand loved ones, and the specific community involved. This approach creates a direct or indirect dialogbetween offenders and victims in which the offender acknowledges and takes responsibility for the harmhe or she has done. The focus in restorative justice is on compassion for the victims, on preventingcrime, and on healing perpetrators of crimes by allowing them the chance to help repair the harm theyhave caused.Collaborative Law is most often practiced in the context of family law. In this approach, lawyers sign acontract to agree to work toward a settlement outside of the customary adversarial process. If thecollaboration fails, and court proceedings follow, new attorneys must be retained. Thus collaborativelawyers have an incentive to engage in creative dispute resolution, to maintain honest and respectfulcommunication with all parties, and to work toward a mutually beneficial settlement.Law as Coaching encourages clients to view their legal disputes as opportunities for growth andconstructive change. The lawyer coaches clients particularly with respect to empowering them to claimtheir ability to choose. The Lawyer-Coach helps clients to understand the implications of their ability tointerpret and to make meaning of events, and helps them to honor past and future aims and intentions. 2
Other emerging models of law and justice include Therapeutic Jurisprudence, Integrating Law,Preventive Law, and Community Lawyering. Sometimes all of the approaches mentioned above aregathered under the umbrella of Comprehensive Law which views law as primarily a healing disciplinelike clinical psychology or medicine.The FAC on Law Professions has before it the task of engaging these or other innovative, attributivenotions of justice in each of the areas of public and private law. Since law regulates relations betweenhuman beings and communities, it is essential that the law professions embrace the qualities of love andforgiveness if a genuine and sustainable global community is to emerge.Copyright 2010 The Fetzer Institute. All rights reserved. 3