Elements of a Fair Judicial System1
The subject of this paper is central to any Sudbury school – indeed, to any community. The key word of the title, as we will see, is “system”. First, however, I want to discuss the word “judicial”.
I have pointed out elsewhere2 that the root problem of forming any social community is the inherent tension between the individual – the desire of an individual to realize his/her personal life goals – and the need to compromise some of that individuality in order to fulfill the social instincts of the human species. The nature of the compromise manifests itself in the existence of some sort of group of rules that govern the behavior of the individuals in the community. What goes on inside you – your dreams, thoughts and aspirations – do not affect the rest of the group; it’s how you behave within the group that constitutes the subject-matter of the rules. And as soon as you have a set of rules set up in a community, you have the immediate problem of what to do when the rules are breached – because they’re going to be breached, that’s guaranteed! Its judicial procedure is a community’s way of dealing with breaches of the rules that have been set up in order to deal with actions that derive from the tension between the individual’s desires and the community’s needs. Every social order, no matter how primitive, has some judicial procedure. Even the smallest tribe, even families, do. They don’t necessarily call it that, but it’s what happens every day within a family structure, because the same tension occurs any time you have more than one person in frequent interaction.
The judicial procedure of any society is the heart of that society. I’ve never really grasped how true that is until I started organizing my ideas for this paper. The heart of any community is the way it has figured out what to do when the rules made to deal with the tension between group and individual are breached. A group that hasn’t figured this out isn’t viable, because the one thing that you know that’s going to happen is that at least some of the rules will be breached.
The critical importance of the judicial procedure is something that people realize instinctively. For example, in the school, we often hear it said that “the Judicial Committee (JC) is the heart of the school.” This is probably why a lot of students like to observe the JC. The fact that the JC is open allows children of all ages to come in and out. They sense that it’s something they want to keep an eye on, that they want to reassure themselves about. During the course of the year, the most amazing configuration of people of all ages float in and out, not only people involved in the complaints being processed. They sense the centrality of the JC.
It’s the “system” part of “judicial system” that I want to focus on here. A system is an organized, interconnected way of dealing with situations. Judicial systems appear to have been created about 5,000 years ago. The best known early example of one is the Babylonian system that was set up by Hammurabi, a wise ruler of the ancient Babylonian empire. His system had five important components that have stood the test of time.
The first was a clear exposition of where the rules come from. In the case of the code of Hammurabi, he, the king, was the source of all the rules. There was no ambiguity about this. In the Babylonian empire, if you went into a community and you tried to establish rules in that community, unless you could show that you received your authority directly from the king, what you proposed had no force.
Second, there had to be an explicit public listing of the rules in clear language, widely distributed. It wasn’t easy to publish Hammurabi’s code, since each copy had to be written in cuneiform characters (a form of syllable symbols, containing several hundred different characters) imprinted on clay tablets, which had to be distributed throughout the empire; but that was key, and it was done.
Third was a clear delineation of who is authorized to run the judicial procedures. The king might promulgate the rules, but the system must create within itself an authority that has the power to enforce the rules.
Fourth was a definition of the parameters of a fair judicial procedure. This determined how the proceedings should be run, and established uniformity throughout the empire.
Finally, the fifth element of the system was a specification of the consequences for breaching the rules.
The five elements above constitute a judicial system. In the course of time, most communities accepted the need for judicial systems which possess all five elements, although the nature of each of them can vary.
Let’s look at each of these five factors a little more deeply. We can start with the first one: a clear exposition of where the social rules come from. Historically, we know they have emanated from kings, from dictators, from military leaders who have seized power, from plutocratic organizations – indeed, from various groups of people that have had the power to control societies. All of those cases are instances of rules imposed by some force majeure that can impose its will on the community. There are many societies in which rules are alleged to derive from a divine origin: they believe that God has instructed them precisely how to behave. In such theocratically run societies, all the rules are divinely ordained, not just the rules for religious rituals.
Liberal democracies, by contrast, created a method of making rules that seeks to enlist widespread “ownership” and acceptance of the rules, along with a mechanism for changing them in response to society’s changing needs and changing perception of itself. A mechanism is developed – different in different countries – whereby the rules can be said to derive from the consent of those governed; in other words, from the community as a whole, rather than from God or from a narrow ruling class. Many observers feel that, with time, this approach will supplant all others as a universally accepted source of community regulations. In our school, based on the liberal democracy model, the only source of community rules is the community as a whole, whose will is expressed either through the School Meeting or the Assembly.
Let’s turn now to the second factor: an explicit, public listing of the rules in clear language, widely available. That was Hammurabi’s greatest contribution, because that ensured that everybody in his empire could determine unambiguously what, precisely, the laws of the empire were. The key word here is “precisely.” Everybody could at least access the exact formulation of every rule. I think it’s worth contemplating this, because it once again highlights the fact that the invention of writing is what made the existence of large-scale, stable, viable societies possible. Writing enables you to transmit information in an accurate and unambiguous manner over space and time. As soon as you have a far-flung community, that becomes essential. Most of you, when you were children, played the game “telephone”, so you can imagine what happens when a king tells his minister, orally, what his wish is, and the minister tells his assistant minister, and the assistant minister tells sixteen underlings, and they go tell the messengers to tell the governors in places many miles away. The odds of getting it right are very slim, and the likely outcome – confusion! Once you “put it in writing,” everything changes. Putting laws in writing is key to having a stable and effective judicial system. The ancient Romans took this to a new level; Roman law became the model for all subsequent legal systems in the West. They went to great pains to develop a highly detailed set of laws which were promulgated widely throughout their vast holdings.
The existence of a written law code has a negative implication that’s also extremely important: anything not explicitly contained in the code is not a law. That’s tremendously significant, because if prohibits officials from saying that a rule exists when in fact that claim is not legitimate. If it’s not in the code, it’s not a law, no matter what anybody tells you. That’s a common failing in school systems in general, where the reality is that in the last analysis some administrative official, such as the assistant principal, effectively makes ad hoc rules. In our school, it’s very important that we have an official Lawbook, containing all the rules passed by the School Meeting (and nothing else!). It’s hard for us to remember that when we started in 1968 there wasn’t a single law in the Lawbook. Our archives still have the Lawbook at the end of our first summer session; it was one page long. Slowly it grew, and then it became chaotic after a while because we’d just pass a rule and add it to the bottom of the list. Soon we realized we had to organize it some way, and a committee was set up to do this. It turned out that this was no trivial task!
The third ingredient of a legal system is a clear delineation of who is authorized to run the judicial procedures. When the ancient Israelites escaped from Egypt under Moses’ leadership, Moses personally decided everything, according to the Biblical account. This leads to a charming story. Moses’ father-in-law visits him and sees him in action, at which he exclaims, “Are you crazy? You’re running yourself into the ground!” He then proceeds to instruct Moses: “This is no way to run a legal system,” he says. “What you’ve got to do is appoint senior magistrates for each 1,000 people, lesser for each 100, and subsidiary ones for each 10. First cases are heard at the lowest level, and if they are appealed, they get to higher levels, until the few hardest cases reach you, as the final arbiter.” Moses does that, and gets some time to sleep!
In most complex societies in the last several millennia, a separate category of people has been established, called “judges,” to carry out the judicial procedure3. In liberal democracies, judges are supposed to be independent of political pressure. Even in ancient times, it was widely accepted, in principle, that judges shouldn’t accept bribes or be influenced by external factors. But it became increasingly important in modern times that judges be independent of all political influence. There’s a lot of history of sinister political influence behind that growing demand.
There is more to being a judge than a name. It’s all very well and good to say, “You’re a judge,” but what is it exactly that judges do? In fact, they do two things. They determine what the law means, and they determine whether the law has been broken. These are two very different tasks. To determine what a law means is an act of judgement. Laws are just words, and words don’t mean anything until they’re attached to something concrete. Also, it is impossible to obtain universal agreement on what words really mean. No two people agree on what a sentence means in all of its fullness. So the judge is confronted with an alleged breach of a law, and the first thing to decide is what does the law actually mean and how does it refer to that action that has taken place? You often hear complaints from one group or another that judges shouldn’t “make law”; they should just “interpret law.” But judges always make law. They cannot avoid it. Every judge in every decision is making law, and the law that judges make gets collected in a series of precedents that slowly builds within a community, and fleshes out what the meaning of the law is.
In Sudbury Valley, the members of the Judicial Committee are the judges4. The JC has interpreted rules in different ways throughout the history of the school. Every time a case is brought before the JC, the question is, “What does the rule mean? Does it cover this incident, does it have anything to do with it?”
Several years ago, we put together a Casebook, which is a set of precedents, to give guidance to the Judicial Committee on a day to day basis derived from what has happened in the past in similar situations. The Casebook is referred to frequently. For example, we may have a seemingly simple rule, such as,“Running or rough-housing are not permitted in the buildings or on the porches.” The Casebook lists all the previous ways that has been applied, and gives concrete meaning to the concepts of running and rough-housing. Thus, we learn that in the past, the JC, in deciding specific cases, has considered the following activities to fall under the running and rough-housing rule: power walking while giving another person a piggyback; attempting to put frosting on another person’s face; tickling another person, or allowing another person to tickle you; doing cartwheels indoors; spinning in circles while indoors; playing catch with any object in the building; juggling bean bags indoors; picking up a chair while someone is sitting in it and carrying it around; and so forth. In fact, the Casebook lists 107 different types of activities that the JC has considered to fall under the rule, organized into four general categories (Physical Rough-housing; Running; Throwing Related; Property Related). Of course, all of these precedents are, for the JC, what precedents are for courts in the world at large: they are used as guides, and can be reversed if the JC so wishes5.
The fourth component of a judicial system is a clear definition of a the parameters of a fair judicial procedure. This involves the other function of judges, to determine whether a breach actually happened. That’s called “determining the facts of the case.” We have something in this country called “due process”, which governs how we look at the facts of the case. As you might expect, the meaning of due process has been elaborated by the Supreme Court over time, which has determined, for example, that under due process, defendants have the right to be explicitly informed of their rights.
There are a few things that everybody agrees are part of a due process. First of all, a specific event or act must have alleged to have occurred for a law to be broken. Something has to have happened. Nobody can ever be tried for just contemplating something. No breach has occurred if I’m sitting here and thinking, “I would like to hang so and so,” and I haven’t talked to anybody about it, I haven’t started to plan it, I haven’t gone around saying to people, “Let’s go out and hang so and so,” but I’ve just thought it. I’m sure every one of us has had lawbreaking thoughts. We would probably all be in jail if one could convict us on thoughts.
Second, there must be some kind of testimony – either direct, eyewitness testimony or circumstantial evidence – that the defendant actually had a role in the act. That brings into play witnesses and actual physical evidence.
Third, there has to be a thorough examination of the witnesses by the judges to form an idea of the validity of their testimony, especially when there is conflicting testimony (which happens all the time). There has to be a full opportunity for the accused to defend himself and confront his accusers, and to bring testimony favorable to his defense. It’s not enough just to have witnesses and to say, “Okay, we don’t have to bring the defendant in, we now know he’s guilty,” because maybe he is, and maybe he isn’t. You’ve go to give the accused the right to defend himself vigorously.
Finally, there has to be an opportunity for deliberation by the judges in private before reaching their conclusion about whether a law has actually been broken and, if so, whether the accused is the one who broke it.
These are all widely agreed components of due process in our culture. In Sudbury Valley, the students accept them and expect them. They expect the JC not to jump to conclusions without hearing testimony. They expect the JC to listen carefully to the defendant, and to refrain from issuing accusations that a law has been breached until all the facts are in. One reason many students wander in and out of JC proceedings every day is just to make sure the system is functioning properly.
The fifth component of a fair judicial system is probably the most controversial. There has to be a determination of the social consequences for breaching a rule. This is the end point of any fair judicial system.
I want to step back briefly to gain perspective concerning the situation. A person has been found to have broken a rule that the community has established. The rule came about because the community felt it to be necessary for its viability. That’s where we began. The judicial system exists to support the rule, and thus is a central feature of maintaining the continued existence of the society. The rule is a limitation on individual freedom that the society has felt necessary to impose.
So the question is, what happens next? One possible result of a person breaking a rule is that the community reexamines the rule, and maybe modifies it. This kind of outcome is rare, but it happens.6
If the community continues to value the rule, which it does most of the time, what options are open to it? Before we answer, we have to understand the purpose of any community action. First and foremost, the community faces the need to prevent the breach from happening again. It didn’t want the breach to happen in the first place. Now it faces the fact that the breach did happen, and since it hasn’t rescinded the rule, it doesn’t want it to happen again. This has two consequences. The first relates to the individual who broke the rule. We don’t want that person to break the rule again. There are many ways to go about that. The easiest way is to raise awareness – in one way or another, make the person more conscious of how important the rule is, of the fact that we really do care about the rule. It’s not that the perpetrator didn’t know the rule; you can talk to any five year old in our school, and they’ll recite half the Lawbook to you. They know the rules. Rather, it’s to say, “You know, you might not have thought it was that important, but we do. We may let you off this time, but we want you to know we care about it and we don’t want to see you back again, doing the same thing.”
If the person has done it before and does come back, you’re faced with a need to somehow convince that person that the cost of repeatedly breaking that rule isn’t worth the benefit that the person derives from doing it. The school has many methods of escalating the costs versus the perceived benefits to the perpetrator. To a person running in the hall, sometimes you can say, “You’re out of that hall for a day,” and that may be enough. If you catch them running in the same hall three days later, after they’ve served their sentence, you may say, “We just told you not to run in the halls, how come you’re back here again? You’re out of the whole upstairs for a day.” However you do it, at some point it’s got to be costly enough.
If it’s a rule that you really think goes to the heart of the survival of the community, you have to make the cost really high, so that it’s not going to be repeated again. If somebody does something illegal or something that really jeopardizes the existence of the community, you’ve got to be sure that the cost of repeating that action, if not the cost of doing it the first time, is high enough so that it’s not going to happen again. If the community ignores that consideration, it will pay a price later. Every community that has ignored it, as we did for a long time in the past, has learned that lesson the hard way.
The second result that the community wants to achieve is to prevent others from breaking the rule. That’s the deterrence factor. All of the Sudbury school communities are small communities. Their members know what’s going on. They know that so-and-so broke a certain rule, and they’re waiting to see what’s going to happen; and they all know what the sentence probably will be, often long before it is formally decided. For example, everybody knows that if they litter, maybe they’ll get a warning the first time, but if they litter again, they’ll get to do the trash on one floor; and if you repeat yet again, perhaps on two floors, or on one floor for two days, and so forth. We’ve had kids who have had to do the upstairs and downstairs trash for a week! The point is that if somebody else is observing this, and says, “I left my stuff lying around, and I don’t feel like bringing it to the trash can,” they know that a person who litters the first time usually got a warning, and they can easily think – it can even be subliminally – “Big deal! I don’t feel like throwing it out, so I’ll get a warning, or do the trash one day.” They’re observing the cost and weighing it against the benefits. Everybody does that, and they especially do it in serious cases. Deterrence gets more important as cases become more serious, because the serious cases are usually the ones where people perceive a high benefit. Thus, someone who engaged in an illegal activity on campus would do so only if the activity afforded them a high degree of gratification. Since such activities put the entire school community in jeopardy, when they occur the sentences issued by the school community are always severe, a widely known fact that has clearly helped dampen enthusiasm for engaging in these activities.
We claim to have zero tolerance for any form of physical violence and we mean it, but the question is, where does one cross the line from roughhousing to violence? Let’s assume we all agree that an incident of violence occurred that turned out to be potentially dangerous. We’ve learned over the years that you have to respond vigorously to something like that. You’ve got to send a clear message to the rest of the community, not just to the perpetrator, that we don’t want this behavior in the community, and that people who are violent to somebody else are going to be dealt with severely.
The third factor that comes into play when determining consequences for a breach of the rules is particularly important: consequences provide an element of closure between the perpetrator and the community. A consequence is a kind of pact between the person who broke the rule and the community, and it relieves the tension within the community. It’s the community saying to the person, “This is how we express our disapproval. However, once you have paid the consequence, the tension your act has created among us is relieved. You are now whole with us again.” The closure element of consequences is so important that ignoring it runs the risk of inserting shame into the relationship between the perpetrator and the community, and that can have terrible consequences. The perpetrator worries that “I can’t show my face.” A person wants to feel that if he has done something that the community clearly doesn’t approve of, he has somehow made amends and is whole with the community again. The consequence gives him that opportunity.
These, then, are the features of a fair judicial system. They are rich in complexity, but they provide the key to a satisfactory merger of the individuality that we so treasure and want to have flourish, and the sense of community that we so treasure and want to have flourish. The judicial system is where the two meet.
1. Based on a talk delivered on July 18, 2005 during the Summer Workshop for Staff of Sudbury Schools and Startup Groups held on the campus of Sudbury Valley School.
2. See “The Core Ideas of the Sudbury Model,” The Sudbury Valley School Journal, Vol. 35, No. 1, October 2005, pp. 6-16.
3. I use this term in its broadest sense, to refer to anyone appointed to serve this function. In everyday language, such persons are referred to as judges, or juries, or magistrates, or hearing officers, etc.
4. In certain circumstances, a separate jury serves as the judges; but this happens infrequently.
5. And, interestingly enough, the general legal doctrine of stare decisis (i.e., that prior decisions should be allowed to stand) usually governs JC decisions, albeit intuitively rather than as a formal doctrine. Unless there is overwhelming inclination on the part of the JC to reverse a precedent, the material in the Casebook is allowed to serve as a valid guide for current decisions.
6. We had a rule that banned food or drink in the Art Room. That’s a perfectly reasonable rule. If I had a soda in my hand, and I just happened to want to say something to Joanie, and I’d walk into the Art Room, everybody in the Art Room would say, “BROUGHT UP!” But every time I went into the Art Room, there was a bottle of water in there. It was Joanie’s bottle of water! “There’s nothing wrong with having water in the Art Room,” she would say. “There’s no food or drink, Joanie, and water is a drink,” I would remark. “It’s not a drink.” Now anyone from Sudbury Valley knows that Joanie invents rules; she even sometimes invents definitions of what words mean, and she was convinced that water wasn’t a drink! Finally, somebody filed a complaint against her for violating the rule. Well, the rule was changed by the School Meeting. It now reads, “No food or drink in the Art Room, except for water.”
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