“Learn to do good; seek justice, correct oppression; bring justice to the fatherless, plead the widow’s cause” (Isaiah 1:17, RSV).
Last week’s post examined social justice as part of the virtue of justice in the third principle that influenced the 1983 Code. Today’s post focuses on restorative justice (restitutio iustitiae) in light of the spirituality of canon law.
Howard Zehr defines restorative justice as: “An approach to achieving justice that involves, to the extent possible, those who have a stake in a specific offence or harm to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible.”
Restorative justice aims to repair the harm between a victim, the offender, and the community. Restorative justice is based on three pillars—harms and needs, obligations, and engagement.
First, when one commits an offence, another person is wronged; that harm becomes a need that must be addressed. Second, the violation arising from that harm creates an obligation to attend to that need. Third, the principle of engagement aims to repair the harm caused to the victim by the offence. This attempt at justice involves all parties, including victims, offenders, and community members.
Retributive and rehabilitative justice (traditional justice) are similar to restorative justice. However, the three forms differ in their goals and approach. Restorative justice focuses on repairing the harm between an offender, the victim, and the community, while traditional justice is concerned with punishing the offender. Hence, while victims are central to the restorative justice process, they are peripheral in the traditional justice process. In a restorative justice process, community members play an active role in repairing the harm, while authorities represent the community in traditional justice. The restorative justice process involves dialogue and negotiation among the concerned parties, whereas negotiations between parties in a traditional justice process are often adversarial.
The 1917 Code of Canon Law identified the key purposes of canonical penalties as the reform of the offender and the repair of scandal without reference to restoring justice (Can. 2214 §2 CIC 17). Compensation for damages was limited to damages and expenses incurred when a juridical act posited was null (Can. 1681 CIC 17). Furthermore, CIC 17 did not include the action to compensate for harm under penal processes.
However, the Church’s perspective on restoring justice to victims began to change in the 1960s. In the 1963 encyclical Pacem in Terris, Pope John XXIII emphasised the importance of mutual respect for the rights of each other. This change continued into the Second Vatican Council and the revision of CIC 17. The Catechism teaches that “reparation for injustice committed requires the restitution of stolen goods to their owner” (CCC, 2412), as Jesus blessed Zaccheus because he fully repented and restored what he had stolen (Luke 19:8-9).
Unlike CIC 17, CIC 83 adds a third purpose of penal discipline—restoring justice. Hence, in the context of the application of penalties, the old Book VI of CIC 83 stipulated that an Ordinary should initiate a process to impose or declare penalties “if fraternal correction, rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender” (Can. 1341–old Book VI of CIC 83). Alongside the reform of the offender and reparation of scandal, the restoration of justice was also mentioned within the context of mandatory dismissal of a religious (cf. Can. 695).
Furthermore, CIC 83 modified canon 1681 CIC 17. It stated that “Whoever unlawfully causes harm to another by a juridical act, or indeed by any other act which is deceitful or culpable, is obliged to repair the damage done.” (Can. 128 CIC 83). Under penal processes, CIC 83 also included the action to compensate for harm suffered as a result of an offence (cf. Cann. 1729-1731 CIC 83).
Restorative justice was also a top priority in revising the penal norms of CIC 83. The second criterion that guided the reforms was “the protection of the community and the focus on repairing scandal and compensating for damage.” Hence, the revised Book VI rightfully transferred the three purposes of canonical penal law from the application of penalties to the general description of canonical punishments (cf. Can. 1311 §2). Consequently, the obligation to repair the harm done is more evident in the revised norms, in addition to other established penalties.
The revised book VI also reorders the three ends of canonical penalties, making the restoration of justice the principal purpose of canonical penal law.
The order in the old book was (a) reparation of scandal (reparatio scandali), (b) restoration of justice (restitutio iustitiae), and (c) reform of the offender (emendatio rei) (Can. 1341 Old Book VI). The order in the new Book VI is (a) the restoration of justice, (b) the reform of the offender, and (c) the repair of scandal (Cann. 1311 §2, 1341, 1343, 1345).
Although restorative justice as an academic theory was probably first introduced into criminal justice literature and practice around the 1970s, it has always been part of the Church’s salvific mission because the faithful are members of the body of Christ and, therefore, if one member suffers, all suffer together [cf. 1 Cor 12, 12,26]. Hence, it remains an essential element in the journey towards holiness, encompassing the making, interpretation, and application of the law.
In light of the spirituality of canon law, restoring justice is indispensable because, while Christ calls us to forgiveness, unaddressed harm affects one’s relationship with God. Humans often need closure to an offence to sustain their relationship with God and the Church.
The following are instances where the law stipulates an obligation to repair harm alongside other penalties: one who steals ecclesiastical goods or prevents their proceeds from being received and one who alienated ecclesiastical goods without prescribed consultation, consent, permission, or any other legal requirement for its validity or liceity (Can. 1376 §1); one who bribes one who exercises an office, ministry, or function or the person who receives the bribe (Can. 1377 §1); one who in the exercise of an office or function requests for an offering beyond the established sum (Can. 1377 §2); one who abuses ecclesiastical power, office, or function (Can. 1378 §1); one who, through culpable negligence, performs or omits an act of ecclesiastical power or office or function that causes harm to another (Can. 1378 §2); a cleric or religious who commits an offence in a financial matter (Can. 1393 §2).
In procedural law, judges and tribunal officers can be punished if they breach secrecy or, through deceit or serious negligence, cause harm to litigants (Can. 1457). Canon 1729 §1 provides that an injured party in a penal trial can bring a contentious action to repair damages suffered as a result of an offence.
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
