Posted by: Dan | August 10, 2007

Engaging the Criminal Justice System: Anarchy, Order, & the Church

What business is it of mine to judge those outside the church? Are you not to judge those inside? God will judge those outside…

If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? Do you not know that the saints will judge the world? And if you are to judge the world, are you not competent to judge trivial cases? Do you not know that we will judge angels? How much more the things of this life! Therefore, if you have disputes about such matters, appoint as judges even men of little account in the church! I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother goes to law against another — and this in front of unbelievers!

The very fact that you have lawsuits among you means you have been completely defeated already. Why not rather be wronged? Why not rather be cheated?
~ Paul the Apostle, 1 Cor 5.12-13a, 6.1-7.

Now my hypothesis is not so much that the court is the natural expression of popular justice, but rather that its historical function is to ensnare [popular justice], to control it and strangle it, by re-inscribing it within institutions which are typical of state apparatus… Popular justice recognises in the judicial system a state apparatus, representative of public authority, and instrument of state power… This is why the revolution can only take place via the radical elimination of the judicial apparatus.
~ Michel Foucault, “On Popular Justice: A Discussion with Maoists” in Power/Knowledge.

In my efforts to journey alongside of, and in solidarity with, those on the margins of our society I have increasingly wondered about the extent of interaction that I should have with the criminal justice system (I have three power-elements in mind here: the police, the law courts, and the prisons; these are the militant, the judicial, and the penal power-elements of “justice” as it is enforced in our society). Increasingly, I am uncomfortable with any sort of appeal to these power-elements. This is so for several reasons.

First, I have seen innumerable physical and emotional scars caused by rampant “abuses of power” committed by police officers, court officials, and prison guards, and this has led me to the conclusion that acts of brutality, dishonesty, and violence are not abuses of power within this system, but are natural expressions of power within this system. That is to say, I now no longer believe that such actions are “freak” occurrences, extrinsic to the system; rather, I believe that they are inherent to the system and intrinsically linked to all three of these power-elements (thus, the true “freak” occurrences are when rare officers, officials, and guards are able to not engage in these violent practices).

Secondly, I have also been convinced by those, like Foucault, who argue that all three of these power-elements are fundamentally compromised and exist in order to serve the interests of the privileged few, over against the disadvantaged many. The problem that exists within these power-elements isn't simply the impact of power upon individual people; rather the problem is much deeper and rooted in the law itself. Our legislations, our laws, our rules, and our concepts of “justice” and “equality under the law” actually mask a deeper injustice and a deeper inequality that are operating through all of these things. What do laws of private property and public decency tell us? That both the rich and the poor cannot steal to survive; that both those with homes and those who are homeless cannot sleep in bus shelters; that both the employed and the unemployed cannot wash windshields at intersections to try and earn some change. And so we see how “equal rights” and “justice” operate in our society.

Thirdly, I am similarly convinced that these power-elements also fail to operate in the way in which they promise us that they will operate. The criminal justice system promises the general public order and safety, and it premises its punitive measures upon the rehabilitation of the criminal. However, in actuality it makes us less safe, not only because it exercises its power over us in an abusive manner, but also because it only entrenches criminals in their criminality. Indeed, despite all the promises to the contrary, Foucault argues that this is precisely what the criminal justice system sets out to accomplish. Rather than “rehabilitating” criminals, the judicial and penal systems justify the militant system by ensuring that criminals can only remain as criminals. Thus Foucault argues:

At the end of the eighteenth century, people dreamed of a society without crime. And then the dream evaporated. Crime was too useful for them to dream of anything as crazy — or ultimately as dangerous — as a society without crime. No crime meant no police. What makes the presence and control of the police tolerable to the population, if not fear of the criminal? This institution of the police, which is so recent and so oppressive, is only justified by that fear. If we accept the presence in our midst of these uniformed men, who have the exclusive right to carry arms, who demand our papers, who come and prowl on our doorsteps, how would any of this be possible if there were no criminals? ( from “Prison Talk” in Power/Knowledge)

Therefore, maintaining criminals as criminals is one of the major ways in which the privileged few, who control the criminal justice system, are able to divide the disadvantaged masses and make the majority adopt agendas that actually run counter to their best interest.

Consequently, with these three points in mind, my discomfort with appealing to any of these power-elements should now be understandable. To call the police because I have been assaulted, to press legal charges because I have been robbed, to initiate a process that ends with a person sent to jail — doing any or all of these things is the equivalent of surrendering a person from the margins to power-elements that are bent on the destruction of that person. Furthermore, it is difficult (impossible?) to see how such an action can be construed of as an act of solidarity with those on the margins; rather, such an action more often (always?) betrays the extent to which my solidarity is merely rhetorical and not actual.

Therefore, if our first response should not be an appeal to the police, the courts, and the prisons, how should we respond to personal experiences of violence, or theft, or other criminal acts?

Well, as Christians, we may want to begin by taking the Sermon on the Mount seriously. When struck, we can turn the other cheek (rather then striking back with the “long arm of the law”). When sued for our tunics, we can give our coats as well (rather than counter-suing in order to get back what “belongs” to us… plus a little more for damages incurred). When someone asks for something from us, we can give it to them (rather than focusing on that to which I am legally entitled). And when we encounter those who would make themselves our enemies, we can respond with love (rather than responding by seeking their imprisonment).

However, and this is where the opening quotation from 1 Cor 5-6 comes into play, Christians will only be able to spontaneously respond in this way in the public sphere, if they have previously learned to respond this way to their brothers and sisters in the Christian sphere. Consequently, rather than viewing the three power-elements of the criminal justice system as authoritative, Christians must view the Church (the Christian community) as authoritative. It is the Church, not the criminal justice system, that must define “justice” and “equality.” Our natural inclination must not be to appeal to the power-elements of the criminal justice system, our natural inclination must be to appeal to the Church — and this means that we must undergo some distancing from all other power-elements that seek to act as authorities over us. If Christians do not act in this way, if they persist in seeing the criminal justice system as the authority over their lives, then, as Paul asserts, we have already been completely defeated.

Furthermore, I believe that Paul might well be alluding to the Sermon on the Mount when he concludes by asking “Why not rather be wronged? Why not rather be cheated?” Indeed, at this point I believe that Paul is not only concluding his reflections on law-suits in the Christian community (6.1-6), I believe that he is also concluding his reflections on how to respond to those outside of the Christian community as well (1 Cor 5.9-13).

But wait, some may object here, doesn't this argument lead us to anarchy?

Certainly the privileged few, who run the State, would want us to see anarchy as the only alternative to the power-elements imposed by the State. Anarchy, the collapse of order, is always the great enemy and the great justifier of State power — granted that power may be less than perfect but, so the argument goes, it is better than the alternative. However, as William Stringfellow shows us (cf. Conscience and Obedience), the State's claim to order is illusory. In fact, violence, war, and an increase in chaos, are intrinsic to the project of the State. The “order” imposed by the State actually results in precisely the things that the State projects onto anarchy.

Consequently, we are now in a place where we can understand Pierre-Joseph Proudhon's in/famous assertion that “Anarchy is Order.” When the “order” of our day is a mask for chaos, we have no choice but to be anarchists. However, precisely because Christian-anarchy takes place within the Church, as an element of the Church, I believe we are in a position to follow Jurgen Moltmann's line of thinking when he stated, in response to Ernst Bloch, that “only a Christian can make a good atheist.” I would like to conclude by suggesting that only a Christian can make a good anarchist.

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