Duality or Trinity, Scales or Circles: What Approach for Justice in a New Generation?

Posted on Categories Legal Education

justiceThis week, I want to try to tie together some aspects of three experiences I recently had, and tell why I believe they reflect something about the evolving nature of justice at this point in human history.

A. Oliver Wendell Holmes, Sr. and Jr.: A first generation poet; a second generation jurist. I was rooting around in the attic, sorting out books for donation to a local charity, and came across my husband’s grandmother’s 1952 edition of The Family Book of Best Loved Poems, which randomly flipped open to “The Last Leaf” by Oliver Wendell Holmes, Sr. I read it and was reflective about the beautiful minds that manifested over the course of two lifetimes, father and son, one as a physician and poet and one as a jurist, each achieving excellence in their unique ways. 

The Last Leaf

I saw him once before,

As he passed by the door,

And again

The pavement stones resound,

As he totters o’er the ground

With his cane.

They say that in his prime,

Ere the pruning-knife of Time

Cut him down,

Not a better man was found

By the Crier on his round

Through the town.

But now he walks the streets,

And he looks at all he meets

Sad and wan,

And he shakes his feeble head,

That it seems as if he said,

“They are gone!”

The mossy marbles rest

On the lips that he has prest

In their bloom,

And the names he loved to hear

Have been carved for many a year

On the tomb.

My grandmamma has said–

Poor old lady, she is dead

Long ago–

That he had a Roman nose,

And his cheek was like a rose

In the snow;

But now his nose is thin,

And it rests upon his chin

Like a staff,

And a crook is in his back,

And a melancholy crack

In his laugh.

I know it is a sin

For me to sit and grin

At him here;

But the old three-cornered hat,

And the breeches, and all that,

Are so queer!

And if I should live to be

The last leaf upon the tree

In the spring,

Let them smile, as I do now,

At the old forsaken bough

Where I cling.

Two evenings later, the ABA Journal arrived in the mail and I found on its last page a picture from the Wisconsin Historical Society and an associated discussion of the overturning of the Holmes, Jr. court case of 1927, Buck v. Bell, which allowed state laws on forced sterilization to proliferate for a significant period of American history thereafter. For those who may not know, Buck v. Bell is the case from which we receive the oft-quoted phrase of Oliver Wendell Holmes, Jr. “three generations of imbeciles is enough.”

How curious that those words flowed from the pen of the son of the author of “The Last Leaf.” For background on Holmes, Sr. as a poet, I researched at ibiblio, and found the following reflection of Holmes himself on his poem to his publishers three decades later: “I have lasted long enough to serve as an illustration of my own poem. I am one of the very last of the leaves which still cling to the bough of life that budded in the spring of the nineteenth century. The days of my years are threescore and twenty, and I am almost half way up the steep incline which leads me toward the base of the new century so near to which I have already climbed.”

How can these seemingly opposing sides of a father and son be reconciled? By this I mean that one side of the younger Holmes appears to endorse a model of justice in Buck v. Bell that “weeds out” the bad seeds of humanity and gives the decision-making authority for making that determination to mortal beings in power. Contrast this with the poetic voice of Holmes, Sr., which reflects instead an acceptance of the process of aging, and an understanding that life encompasses new and old, wholeness and brokenness, mastery and infirmity, all within one being over the course of the years given to us, and all to be experienced without praise or blame, without judgment from self or from others.

To me, I think both men would have struggled with integrating these aspects as both being voices of wisdom and justice; left-brained legalists, and the right-brained poets, in the era in which they lived. The jurist Holmes lived at a time when black and white decision making was the embraced model of “enacting” justice. There was a right and a wrong. To create justice, eliminate the bad and embrace the good. According to the ABA Journal note, author George Hodak states that after Holmes’ opinion issued “over the next 15 years, a politically powerful American eugenics movement blossomed and, armed with the court’s acquiescence, pressed more than half the states to pass forced sterilization laws that grew increasingly broad in scope.”

Justice was not so much to be restored, as it was to be created, and this creation involved excluding and eliminating what was not desired, from being acknowledged in our pasts, existing in our present, or being embraced in our future. Hence, “three generations of imbeciles are enough.” This was truly an era where the symbol of the law was the scales of justice, dualism, black and white, good and bad, and right and wrong. I do think there was a time when this model of justice was delivered effectively and humanely, to the best of the abilities of generations of attorneys and justices and workers in our systems on behalf of justice. I think, however, our knowledge and awareness illustrate that the time for that paradigm is ending.

B. A new symbolism. The same symbol appeared repeated times to me in the past two weeks in subtle and overt ways. The symbol is a triangle surrounded by a circle. My research on it led me home to Marquette, interestingly enough, and to the logo of Marquette’s Restorative Justice Initiative, and a recent post about The Healing Circle, and the wonderful recent work that Professor Janine Geske references in her blog post, “Repairing the Harm from Clergy Sex Abuse.” She speaks of the use of the healing circle, and says, “These circles succeed in getting everyone present to deeply listen to each other and provide a safe environment in which to speak from the heart. I have participated in hundreds of circles through the years and still am amazed at what I learn from people through this process.” As Archbishop Dolan has often remarked in his words about the struggle of the church to heal from this particular crisis, there will be no true healing without acknowledging the harm that has been done, and it is inappropriate and counter-productive to attempt to “get over it” in any manner that is dismissive and lacking in true respect.

If justice and healing are to be embraced as one and the same, as I believe they are, healing must come with the courage to bear the knowledge of the harms of the past. That knowledge, and those details, must be given a voice in that safe space of sharing, the circle. What is not known, not spoken, left unvoiced and buried, cannot be forgiven, and what is not forgiven cannot be made whole. Only through wholeness can the courage and power for positive change come for the sustainable future. This is a shift in the way justice is seen. It is not black and white, as I think it was expected to be in the generation and the Supreme Court of Oliver Wendell Holmes, Jr. I also believe we do not create justice, we restore it, and we restore it because “justice” is not a man-made concept. Scales are man-made; circles, in contrast, are all around us in nature.

We can never eliminate the shadow of injustice. We can only change the composition of the elements in the circles of our communities, our families, and ourselves, so that the momentum for justice, peace, honor, integrity, and healing or restoration outweighs the recognition of and dwelling within past harms. In my mind, there is no coincidence that symbols for recycling and sustainable energy share the visual elements of the triangle within the circle, the trinity.  Are we moving, as a culture, from a view of the scales of justice to the circle of justice? I think we are.

C. Poetry and Restorative Justice; a golden horse and a little girl.

Professor Jessica Slavin has written a wonderful post on lawyers and poets, in which she references a website that takes poet/lawyers into even greater depth: Professor Elkins’ “Strangers to Us All.”

There is much connection between the poetic voice generally and the Healing Circle dynamic. In fact, current training on peacemaking circles uses poetry as an entry to the peacemaking process. For instance, an upcoming training at the Canadian School for Peacemaking in Winnipeg has a course called Poets, Prophets, and the Music of Social Justice, exploring the relationship between worship and social justice (the link to that training is on Marquette’s Restorative Justice Initiative homepage).

Now more than ever, poets make a contribution to the evolution of a new paradigm of justice for the next generation. Poets speak with the voice of elegy, the voice of history and the soul of memory. The healing of our broken systems of justice, based on old hierarchies and power systems of dominance and duality, is being replaced by circles of healing, in which the shadows of the past are recognized and given the space of safety in which they can be truly healed, for the long term. There is no coincidence that restorative justice is blossoming in our law schools and training for the future generation of peace-bringers, and further no coincidence that the role of poetry and the recognition of poetic voice is often a key element of training for “peacemaking circles” and circles of healing that have the goal of restoring balance to broken communities, families, and individuals. I would like the think that both of the Holmes’, the poet and the jurist, would have seen this as a positive evolution.

My third experience comes from my own right-brained writing. I sometimes write some poetry, when emotion moves me to a place where the page needs more than professional syntax to hear what my heart says needs to be said. I volunteer in an equestrian therapy program for children with physical, cognitive, and emotional challenges. Some of the children in our program have significant histories of abuse. Healing happens, with the help of a horse. My bearing witness to that is sometimes why I think I am there, and so I occasionally write. This poem completed my own triad of recent reflections in a way that I decided to include it here.

Karen’s Shirt

Her T-shirt was white, with a black script heart

Centered on her heart, on her

Slim frame, lean brown arms, bony shoulders,

The lean and strange grace of youth,

More motion and spirit than flesh and bone to cover-

The shirt white, with green and blue hearts offsetting,

More script filling up the page of her body.

Golden glitter with the black curls of the words

Her voice, absent.

Her eyes huge and hazel.

They too speak without words.

Our synchronicity is in the rhythm of knowing when

It is time to walk, to trot; and today we just walk, mostly, Breathe out, breathe in,

The swallows slice through the air,

The swish of tail, the quick truth of the breeze-

Memory remains, but there is also just now.

The dust in the arena blows in whorls, like roses round.

We walk, I at her side on the ground, silent as well.

Gold-speckled dust, golden horse,

A glisten of horse sweat, smell of honey.

A glint of sun upon us

As we round the barrel at a walk at the

Far end, looking out the open west door of the barn,

The sun and the wind unify our motion,

Eden awash on us for a moment.

Lit script on her body-

“I Love Justice” on a white T-shirt in black gold glitter script,

Repeated over and over,

Written on the Rosetta stone of her heart.

The moment of the sun and the Russian olive blossom breath of wind-

We three; horse, rider, and companion,

We walk in the shadow and in the expectation

That we ride through a cycle In which we will remember the light and the breath of God’s world

Long after we have passed beyond the shadow

Which we have carried, and

Through which we pass in memoriam;

Circling on a horse around blue barrels

For honor, for memory, for wholeness

And this ordinary holiness

Ever after.

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