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In my previous post, I asked a simple question: Why justice? The answer is equally simple: Justice enables relationships. It is the principle of fairness that makes community possible. This is why we find justice (or perhaps we should say efforts at justice) wherever we find community.

In this post, I would like to ask another question: What does justice look like? What are its elements?

The elements of justice are remarkably consistent across communities. We can divide them into two main categories: preventative justice (sometimes called primary justice) and remedial justice (sometimes called rectifying justice).

Justice as prevention is like a STOP sign. Its aim is to deter any action that may bring harm to another: Do not steal, do not murder, do not tell lies about others, and so on.

Justice as remedy is like the clean-up operation after an accident. This happens when the STOP sign has been skipped: If you have stolen, this is how to fix it. If you have murdered… and so on.

Preventative justice aims to keep a relationship intact. Remedial justice aims to repair a broken relationship. Preventative justice says, “Do not steal your neighbour’s sheep.” Remedial justice says, “If you have stolen your neighbour’s sheep, you have to give them back.”

For remedial justice to work, it must restore what has been lost. Its compensation must be proportionate.  But there is a problem: If you steal a sheep from your neighbour, you take more than a sheep. You also take your neighbour’s peace of mind. He now goes to bed worried that more of his sheep may disappear in the middle of the night. He worries about feeding his family because his livelihood has suffered. His wife blames him for not securing the fences. He treats his farm workers with suspicion. By enriching yourself unjustly, you have brought misery to your neighbour and his family.

Proportionate compensation demands that the perpetrator repair all of this damage. He has to clean up the whole mess that he has caused. He has to return the sheep along with a compensation—a “penalty” that will compensate the distressed neighbour not only for his lost sheep but for all the trauma the theft has caused the family. Remedial justice-codes typically add a percentage on top of the compensation to ensure proportionality. Leviticus generally requires the return of stolen property together with an additional one-fifth (20 percent).

But what do you do if you no longer have the stolen goods—if, for instance, you have invited your friends over for a massive barbecue and the sheep is no more? According to Exodus, the penalty for slaughtered or sold sheep is four to one. This means you have to pay your neighbour an amount equal to the value of four sheep. The math is intended to restore your neighbour’s equilibrium to the same level it was before the break-in. Your penance must restore the neighbour’s peace, and the sign that this has been accomplished will ideally be his willingness to forgive you. (“Well, this turned out better than I expected. I am better off than before. I might as well forgive the miserable wretch who stole my stuff. He has demonstrated his remorse by his repentance and proven it by his restitution.”)

The problem is that sheep thieves are not exactly known for doing the above. They fail to discern justice, and so they do not stop or clean up. They hide. We will say more about the relationship between injustice and concealment later on. Let us note for now that a shortage of justice-discernment calls for another remedy altogether: someone to do the discernment on behalf of the one who cannot do it for themselves.

In justice-talk, the discernment of justice has a name: judgment. Judgment is the ability to perceive what justice requires, and it is a prerequisite for doing justice. Justice therefore consists of two inseparable movements: first discerning justice, and then doing what it demands. The one who judges well will be distinguished in a community from those who don’t, and called on to share their wisdom with those who lack judgment. More often than not, they end up in governing positions.

For instance, a dispute between people will reveal differing opinions on who is guilty of misconduct and who is not, calling for an arbiter who can judge the situation on their behalf. Situations of conflict typically stem from a difference in justice-discernment between two parties and end up in front of a judge—or, in some systems, a jury—who can do the discerning for them. We call that judgment a verdict, and it overrides the subjective sensibilities of the conflicting parties, the idea being that the judge or jury possesses powers of discernment that are superior to those of the conflicting parties. Thus, verdicts are binding on those who receive them.

Verdicts are not only issued as remedies to injustice. They can also be preventative. It makes sense that a judge may grow tired of constantly sentencing sheep thieves in a community to pay compensatory damage to their victims, and instead issue a law that forbids the stealing of sheep. Laws are codified judgments that pre-empt the necessity of perpetual clean-ups. They are the STOP signs in a community, and they are often informed by the messes that keep on occurring in that community.

Once we understand the above, the Old Testament makes a lot more sense. The book of Exodus tells the story of a community of people who had been liberated from a life in bondage to a foreign nation, and that included being subject to foreign laws. Once freed, they immediately acquired a new liberty: the right to start discerning justice for themselves instead of having it discerned for them by Pharaoh.

Three chapters after the crossing of the Red Sea, we find the people coming to Moses to be “judged” by him. (Remember our earlier point: community building starts with finding justice.) When Jethro asks Moses why he was sitting alone and all the people were standing around him from morning to evening, Moses answers: “Because the people come to me to inquire of God; when they have a dispute, they come to me and I decide between one person and another, and I make them know the statutes of God and his laws.” Jethro then advised Moses to appoint fellow judges to assist him—men who “fear God, are trustworthy and hate a bribe.”

The hatred of a bribe is an interesting but obvious qualification. It suggests that there is a peculiar temptation attached to the task of discerning justice on behalf of others, namely to siphon compensation away from the victim of injustice, appropriate it for oneself, and reward amnesty to the perpetrator in return. Isaiah would write much later, “Woe to those who acquit the guilty for a bribe and deprive the innocent of his right.” If there is anything that a judge should know, then it is that penalties are incurred for the sake of restitution—setting things right with the wronged—not for the benefit of the judge. More about this later.

Interestingly, in the next chapter (Exodus 19) Moses and the people find themselves in the wilderness of Sinai. God then called Moses up the mountain and began revealing his judgments to Israel, beginning with the Ten Commandments. The discernment of justice reaches new heights, with God himself taking over as the supreme judge. Exodus 20 presents God’s preventative judgments and Exodus 21 and 22 a string of remedial and restitutionary judgments.

In Exodus 21:1 these statutes are called ha-mishpatim—”the judgments”—plural of mishpat, a majestic word that means judgment or verdict and is coupled with the Hebrew word tsedeq (meaning justice) regularly throughout the Old Testament. The reason for the close relationship between these two words is obvious: To do justice you first need to discern it.

More about this in posts to come.