Creative Justice (more or less final draft)

Creative Justice : What’s in a name?

Cruelty.

Perhaps the phrase “Creative Justice” evokes ideas of inventiveness in punishment. That’s not the idea. I call theories of justice that feature punishment prominently “punitive” theories of justice. I find them destructive, not creative. Hence, the distinction between punitive and creative justice.

Creativity.

One model of creativity is *creatio ex nihilo* creation from nothing. Something comes into being which has no history. It is not merely a recombination of existing elements. It is new in form and substance.

Justice.

Suppose there is a principle of justice in the world. It is a principle of balance, compensation, equilibrium. It works to eliminate unmerited states of affairs. A new thing, as described above, having no history, cannot have earned its place in the world. The principle of strict justice must therefore *eliminate it*.

Justice & Creativity

The principle of creativity, seeing its work under threat, acts. It *changes* its previous creation. Justice sees that, strictly speaking, the former thing no longer exists. Creativity has satisfied justice in the only way it can, through change. I call the working together of these two principles “Creative Justice.”

So, the name “Creative Justice” says both what it is not – punitive justice – and what it is – the working together of two cosmic principles.

Punishment versus Correction

What correction is.

From the point of view of creative justice, correction is the restoration of the victim to his condition before the crime.⁠ This cannot be a question of restoring the victim to a condition *identical* to that which he enjoyed before the crime. This is, as far as I know, impossible. Though reversibility is not ruled out by physics, I know of no way of rewinding things so that, for example, the bullet flies back into the gun. This can however serve as a regulative ideal, one worth striving for despite our awareness of its impossibility, like perfect efficiency in mechanics.

Creative Justice and the Criminal.

From the point of view of creative justice, correction of the criminal is also a restoration of his condition before the crime, before the disposition to commit it was formed in him. Again this is a regulative ideal. More practically, this means that creative justice demands of the criminal full repentance, so that he is no longer disposed to commit the same crime.

The notion of reversing a criminal disposition may, on the face of things, seem to require methods like those outlined in *A Clockwork Orange*. But,  it is impossible to tell if a criminal disposition has been fully reversed until the liberty of the penitent is restored.  The use of such methods would amount to a kind of permanent imprisonment, a permanent deprivation of the penitent’s liberty.

The best way to reverse such a disposition, while respecting the liberty of the penitent, is “right association”, association with those who do not have such a disposition. Though involuntary at first, this association must eventually come to an end as its goal, as mentioned above, is the free renunciation of the criminal disposition on the part of the penitent. The two goals of creative justice are;

1)- Correction

A)- Restoration of the victim to his condition before the crime.

B)- Restoration of the criminal to his condition before the crime, as described above.

2)- Prevention of a repetition of the crime.

Why punishment is not⁠ corrective.

Assume that to correct a wrong is to punish the wrongdoer. What about the case of excessive self-punishment? Excessive punishment is wrong.⁠ So, therefore, is excessive self-punishment. How is the excessive self-punisher to be punished? Whatever the method, this punishment would be in its turn excessive, and therefore not corrective.

A deeper question has to do with what is being corrected. Punishment does little for the victim, and little to prevent a repetition of the crime. What does it accomplish? This is where talk of “retribution” normally comes in.

Sadism and Revenge versus Retribution

Retribution is said to be better than revenge or sadism in two ways. First, retribution is intrinsically limited, as in “an eye for an eye.” Second, its principal concern is justice. According to the retributivist, sadism and revenge involve the taking of pleasure through the infliction of pain without limit and without the seeking of justice.

There is a situation which presents a problem for this defense. It often happens that pain is meted out in the name of justice mistakenly. This means that anyone who enjoyed such an infliction of pain was not taking pleasure at “justice being done” but was instead enjoying a purely sadistic or vengeful kind of joy. Surely it is not enough for the retributivist merely *to believe* that justice has been done.

Furthermore, it is not the case that the sadist or avenger is unconcerned with justice. Rather, he is too concerned with it. For it is the case that we can have done nothing to deserve to exist. Justice acting alone would therefore work to eliminate us. The sadist’s or avenger’s action is more in proportion to what strict justice, acting alone, would demand.