Promises Worth Keeping

Harold Johnson, 1997

Intrinsic to colonial justice is the concept of punishment. This idea has roots in English history. The earliest written laws of England are contained in Aethelberht’s code. Aethelberht I of Kent was supposedly converted to Christianity by St. Augustine in about 600 CE. Upon conversion, Aethelberht drafted a code wherein, instead of resorting to feuds to settle disputes, the parties had the option to settle for fixed sums of money. If one person killed another, the deceased’s kin, house, or church could demand a code-determined amount proportionate to the worth of the deceased. The Christian church encouraged this early alternative to the feud and private dispute settlement, not only because the church had a problem with people both fighting a feud and upholding Christian values, but also because it provided a windfall for the church. Aethelberht’s code demanded the highest payments for dead priests and actions against the church.

The Christian concept of penance played a huge role in the development of a concept of criminal law. A wrongdoer had to pay penance to cover the sin of his crime. The shift was subtle but evolutionary. The penance was, of course, paid not to the kin of the victim but to the church. These rewards gained from processing criminals soon led the church to establish its own courts. The concept of a fine was well established in the ecclesiastical courts and in canon law before the king took over those courts and claimed the proceeds for himself.

Today, all fines are paid to the Crown. The victims and their families are forgotten in the modern machinery of the criminal justice system. The ideological constructs of the criminal justice system have evolved slowly from penance to punishment, which continues to be the major factor in sentencing principles. However, the dominant underlying motivation remains economic.

Whereas Aethelberht set in motion the economically motivated evolution of state jurisdiction over the criminal, thereby taking jurisdiction away from the community, later generations have certainly perfected the system. With the development of capitalism, criminal law underwent a major revolution. The factory and the penitentiary are similar institutions. Each operates according to strict rules of conduct and authority. Each operates under strict rules of time. The factory processes materials, and the penitentiary processes Indians.

Economics dominates thought in this century. With the collapse of the Soviet Socialist Union, cowboy capitalism has been left to dominate the world agenda. There are no imagined alternatives. The political right dominates, and the left, if not dead, is stalled. The criminal justice system, like all other systems in the industrial world, is affected by the move to the right. The only arguments that are listened to when discussing the criminal justice system are economic: “It costs x to keep an Indian in jail for a year.”

Treaties No. 6 and No. 7 hold a promise of Indian maintenance of “peace and good order.” That Indians “aid and assist the officers of Her Majesty in bringing to justice and punishment any Indian” requires the Indians to participate in the economics of the criminal justice system. If the Indians participate by aiding and assisting the officers of her Majesty, they undermine their ability to maintain peace and good order amongst themselves. When Indians who have been processed in the industrial penal institutions are released, they require community resources to return to a way of life where they can participate in peace and good order.

The more the Indians aid and assist the criminal justice system, the more they destroy their ability to maintain peace and good order. When the Indians reach a point where they are no longer able to maintain peace and good order, they are completely wedded to aiding and assisting the officers of Her Majesty in punishing. In order to re-achieve peace and good order, the Indians must stop aiding and assisting the officers of Her Majesty. The Indians must stop participating in the economics of justice and punishment and focus their limited resources on maintaining peace and good order.

Peace and good order cannot compete with justice and punishment in the economic arena. They are diametrically opposed principles. Justice and punishment are the values of a hierarchy. Ultimate peace and good order can be achieved only in an anarchy, which exists without hierarchy of any kind. In a true anarchy, people live together without oppression. The argument against anarchy, of course, is that without authority, competing interests would cause anarchy to deteriorate into chaos. Nevertheless, if anarchy could be maintained, it would, until deterioration, be ultimate peace and good order. By contrast, whenever hierarchy is imposed—whether through benevolent democracy, despotic tyranny, or economic democracy—it results in some form of oppression. According to hierarchical thinking, oppression through the imposition of justice and punishment is necessary to achieve a semblance of peace and good order.

Yet peace and good order cannot exist in an oppressive state. The act of oppressing by imposing punishment destroys the peace. It is not good order to use violence to maintain the appearance of order. Punishment is violence. Incarceration is violence. The violence of incarceration maintains and is maintained by the economic system of the industrial capitalist criminal justice system.

We are left with the problem of participating, aiding, and assisting hierarchy in an attempt to re-create peace and good order. Yet the criminal justice system’s use of violent punishment has decimated our communities. Do we break our treaty promise to keep peace and good order, or do we break our treaty promise to aid and assist? The answer is, of course, economic. If we are denied the resources to heal the incarcerated, we will not be able to maintain peace and good order.

This article was published in Justice as Healing (1997) 2:1.