Sermon preached at a Service to mark the opening of the Legal Year in England and Wales

Meeting in this way and in this place at the opening of the Legal Year is both medium and message. At the heart of our society, and indeed of all mature societies, is a recognition that holding our people together with bonds of justice and good government requires calculation, experience, and learning, but also something bigger and less definable than any of those: in the word brought to us from our traditions of faith and read just now by the Lord Chancellor, it is “wisdom”, a sense of a context and a picture larger than even the greatest human minds can encompass. We’re here to implore that Wisdom, as the text from Proverbs has it, to “enter your heart” and “protect you with understanding” as you go about your demanding and detailed tasks, so critical for our life as a nation.

Among the many hundreds of judgments that you will have heard and read, and possibly even among those you have written, there will be many that will be forgotten, some maybe even gladly forgotten. It is not that different for clergy and sermons. But among them there will be some phrases and sentiments that will have stayed etched on your memory, that have remained pieces of significant wisdom for you. Among such lines from sermons that have stayed with me is one that speaks to the concerns of all of us gathered here today.

In the autumn of 1965 a disconsolate congregation of seminary students was trying to come to terms with the death of a classmate who was killed while undertaking voter registration in Alabama. Our grief and anger was compounded by the farce of a trial in which his killer, who might have faced the death penalty, faced instead a jury of his friends and relatives more concerned to prevent interfering northerners intervening in their lives, who therefore acquitted him of all charges.*

Faced with our anger and grief, the preacher, one of our professors, comforted us with many thoughts which I do not now recall, but offered this thought that has stayed with me over the six decades of my involvement on the edge of our system of law. Referring to that non-trial, he said this: “I have always been against capital punishment; but there is something worse, and that’s a society that cannot dissociate itself from uncondonable acts.” If we add to the idea of a society unable to dissociate itself from uncondonable acts one that is without a recognised means of settling irresolvable disputes we have as clear a picture as any of what anarchy would be like. And while the responsibility of maintaining those absolute requirements for a civilised life rests on all citizens, it rests with particular weight on your shoulders in the interpretation and execution of the criminal and civil law and the political oversight of the resources that requires.

“You have heard it was said,” Jesus reminds his hearers, “an eye for an eye and a tooth for a tooth.” This is a text widely known and widely misunderstood. Many think those words are part of a primitive and barbaric licence to exact revenge; they are in fact the opposite. They represent the profound insight of the Hebrew people that the bonds of society require transgression to be met with sanctions that are both proportionate and such as to bring closure; that there can be no such thing as society if offences are dealt with by vigilantism and disputes become a licence to interminable, even intergenerational, vendetta. In our terms, we may call the text a statute of limitation, one of the earliest recognitions of the necessity of the rule of law. We can be glad, of course, to have moved on from its literal enactment, but cannot allow ourselves to ignore its central aspiration: that sanctions for wrongdoing and mechanisms for resolving disputes have indeed to be proportionate and bring matters to a recognised conclusion.

I hope that there might be agreement in this gathering that in meeting that aspiration we have much work to do. We sense that when victims of crime or civil wrong call for ‘justice’ because they believe that there is no accountability for wrongdoing or that the sentence or the remedy is not adequate; that in the words I just quoted society has not found the means to dissociate itself from the uncondonable. Often the anger is completely understandable, though the justice being called for may be unattainable not least if the actual victim is dead. Those individual cries for longer sentences or larger damages come together and are amplified as a public cry for tougher justice in general, and become part of that upward pressure on sentences and remedies that is a major cause of the prison crisis. That crisis may be acute at present, but as everybody knows it has been developing over decades: the days are long past since the time when I first led in this field in the dioceses of London and Southwark and senior judges thought that a prison population in the forty thousands was a matter of concern. The problem is that increasing sentences in response to that pressure rarely brings closure any nearer for those who have been wronged, and the upward pressure simply continues.

And if closure is not there for the wronged, it is also not there for the wrongdoer who though the penalty is paid still finds that there is no closure, no chance that they will be able to get employment or otherwise enabled to resume their life on the outside. At the same time the other aspiration of the ancient text for proportionate sanctions also cannot be fulfilled in the context of a deteriorating prison estate that adds a real inhumanity to the prescribed sentence. The Inspectorate and the Independent Monitoring Boards over which I once presided can call for improvement but achieving it other than at the edges has only scarcely been achieved.

This is the annual occasion where we meet to seek wisdom for the demands of your daily tasks of examining cases and considering policies for the interpreting and upholding of the law. It may therefore be audacious for a preacher unschooled in your disciplines to ask for your wisdom in this further, vital, task: that with the knowledge and experience you have you may assist our nation to address with imagination and creativity this fundamental problem of our failure to discover more effective means of closure. We need to replace the illusion that simply increasing the numbers of months or years, or of pounds and pence, will satisfy those who call – often scream – for justice with other means of ensuring a firm and credible dissociation from the uncondonable and resolution of disputes.

Forms of mediation and restorative justice are of course valiant attempts in that direction, though sadly seem to remain small sidelines to the sanctions of the criminal and civil law. But as we are puzzled by the thought that our forbears could see owning slaves as not only morally justified but economically necessary, might the generations that come after us be similarly puzzled that we could see no alternative means of achieving closure after an offence than deprivation of liberty and assume it will be just if you can put ever increasing numbers on it?

We have every reason to admire all those who bring intellectual rigour and the search for fair solutions to individual cases, and all those who seek to operate our present system in ways that are as humane, as safe, and as secure as possible. Among them, I have respected the efforts of prisons ministers in successive governments who have sought improvements and taken seriously what many inspectors, and prison reform charities have recommended. They certainly need our prayers for wisdom, courage and resilience in their tasks.   

But when we come here at the start of another year we also long for gifts of imagination and creativity in the search for a justice that brings closure to wrong and hope to victims and perpetrators alike. The search for a better way will certainly be a challenge for those charged with upholding the present means we have, and even more for politicians whose inboxes are daily filled with the longings for a justice that brings closure and proportionality. It is a task that will challenge those of us charged with retelling the ancient wisdom, that on the one hand actions must have consequences, but on the other hand that those consequences do not have to be increasing and unending to be effective. That is after all what parents teach their children as a matter of course in the years of upbringing; but we need to speak more forcefully and more publicly of why we need justice and the kind of justice we need, one that is proportionate and conclusive for the wronged and wrongdoers alike.

Our second reading recalls to us a citation of ‘an eye for an eye and a tooth for a tooth’. But Christ’s citation does not end there. His is a vision of a new community that can reach beyond closure and proportionality to a form of human flourishing that is based on generosity, mercy and forgiveness as ways of responding to offence and dispute. But such a community has to start from the recognition of that ancient human wisdom that understands the meaning of law, of the social covenant in which we are all held and the boundaries and sanctions it requires. Underneath the often exhausting detail of your work may you be supported by a society profoundly aware of why we need what you are engaged in, its purpose and its indispensable contribution to our life together. In the burdens of that work, along with our shared search for better ways, may the wisdom of God “enter your heart and protect you with understanding.”

*The reference is to the killing of Jonathan Daniels in Hayneville, Alabama on 20th August 1965 by Thomas Coleman; Daniels is commemorated in the Book of Anglican Martyrs in Canterbury Cathedral. The sermon cited was delivered in the autumn semester at the Episcopal Theological School, Cambridge, Massachusetts by Professor Harvey Guthrie.