Just Thought is a series of essays from AJWS applying Jewish wisdom to the pursuit of tikkun olam today. Drawing upon Jewish history, Torah sources and the latest headlines, we plumb pressing questions about human rights and global justice from a Jewish perspective through monthly essays by noted scholars, activists and AJWS staff.
Edgar Pérez Archila is an expert in righting wrongs. As a human rights attorney and director of the human rights law firm Bufete Jurídico de Derechos Humanos de Guatemala (The Law Office of Human Rights in Guatemala), he and his team defend fellow Guatemalans from egregious abuses. He has represented survivors of genocide seeking convictions for the army officials who killed their families and indigenous leaders aiming to stop the eviction of their communities from their ancestral lands.
When I met Edgar last year, as part of a delegation of rabbis in the AJWS Global Justice Fellowship, a member of our group asked him, “What does it mean to achieve justice in these cases? How do you get retribution for the murder of a whole family or village, for the expropriation of indigenous land?” Edgar explained, “The client always decides what justice is for them.”
Sometimes, justice means having the truth revealed. Sometimes justice is getting what they lost returned. Sometimes clients say that what they want most is for this not to happen to anyone else. “Justice,” Edgar explained, “is different for different people.”
The conversation was especially poignant for our group of rabbis—all steeped in the Jewish tradition’s own views on justice. The Torah, too, asks, “what does it mean to make someone ‘whole’ after damaging them? What does justice look like for the injured?” The answer has changed dramatically over time. Initially, the Torah spells out a seemingly simple, though perhaps draconian, formula: “You must not show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”1 If you kill or maim, you will be killed or maimed. Often called “lex talionis,” this system assumes a superficially proportionate response to injury, and even murder.
The rabbis of the Talmud, bothered by the bible’s notion of retribution, transform these principles in ways that make clear the importance of offering restitution, rather than revenge, and illuminate some of the diverse pathways required for making someone whole. First, the Talmud severely restricts the use of capital punishment, specifying that it should be used infrequently, with some declaring it should never be used at all.2 They also transform the laws of injury, doing away with proportional corporal punishment and replacing it with more complex, individually tailored measures of restorative justice.
“Don’t even let it enter your mind!” the Talmud exclaims, that the court should blind the eye or break the leg of the perpetrator.3 After all, human beings come in startling diversity. The Talmud stresses that each of our eyes and legs is not identical. Therefore, this ‘tit for tat’ form of justice can’t possibly achieve the very goal of fairness that it is designed to achieve. Rather, the Talmud asserts, injury should be assessed on a case-by-case basis, much like Edgar’s approach with his clients in Guatemala. With this move, the Talmud transforms a system of retributive justice, motivated by proportional punishment, to a system of restorative justice, where the goal of the law is to make the injured party “whole”—to whatever extent possible.
The Mishna declared that the restoration would be monetary, and points us toward five areas where one might make restitution: for the damage to the body itself, for the pain experienced, for medical costs of healing, for loss of livelihood and for humiliation.4 For each of these categories, the Talmud explains how the Jewish court should calculate the monetary value of abstract things like pain, embarrassment, the value of a limb that’s been lost, or even the future emotional trauma that survivors bear.
There are, of course, significant limitations to a justice system based on monetary compensation. There is no amount of money that can compensate for the loss of a loved one, or for the experience of torture, or for the loss of ancestral lands. Achieving justice amidst limitations like these is part of the challenge faced by Edgar and his team.
In the past few years, several cases that they have been working on for decades have reached resolution in the courts. The former dictator, Efraín Ríos Montt, was convicted of genocide, and just recently a former soldier was sentenced to 5,000 years in prison for the massacre of 171 people. While these sentences do not—and cannot—erase the grievous wrongs that were committed, they reinforce the recognition that indigenous Guatemalans suffered a genocide. As Edgar told us, for some, having the truth revealed is a form of justice. For others, these trials represent the hope that this kind of atrocity will not happen again in Guatemala.
In addition to pursuing strategic litigation with Bufete, Guatemalan survivors of the genocide have come together in survivors’ groups to support each other in processing their experiences and seeking justice. While Guatemala has yet to fully embrace the possibilities of restorative justice, survivors and indigenous groups continue to bring forward strategic litigation and mutual aid, working toward restoring some of what has been lost.
Both Edgar’s work and the Talmudic legal innovations show us the capacity to transform legal systems from punitive to restorative, and the importance of addressing the whole person who has been injured. Their teaching beckons us to transcend the idea of justice as punishment, and to begin to use justice systems around the world to restore rights and dignity for those who have been wronged.
2 Talmud Makkot 7a, “A Sanhedrin that executes once in seven years is characterized as destructive. Rabbi Elazar ben Azarya says: Once in seventy years is destructive. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, no person would have ever been executed. Rabban Shimon ben Gamliel says: In adopting that approach, they would increase the number of murderers among the Jewish people.”
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