SOCIAL JUSTICE

Social justice is a philosophical and transdisciplinary concept that has no particular or distinct disciplinary home. Within and without the domains of criminology, both the struggle for and the study of social justice are underdeveloped and/or unfinished projects. Presently, the constitution of social justice and how to secure human rights for all are not firmly established or agreed upon by most people. Nevertheless, a listing of the basic liberties of social justice includes: freedom of ideas, thoughts, and speech; freedom of association; freedom of ethnic and religious culture; freedom from slavery; freedom from racism, sexism, and discrimination; the right to equality and human needs for all; and the redistribution of power, wealth and status for all, and for entire societies (Sadeghi and Price 2007).  

            Over the short term, the struggle for social justice has reflected the historical changes and continuities that helped to form the Universal Declaration of Human Rights (UDHR), adopted by the General Assembly of the United Nations in 1948. Drawing on the battle cry of the French Revolution, ‘dignity, liberty, equality, and brotherhood’, on the demands of the Industrial Revolution for political, social, and economic equity, and finally, on the communal and national solidarity movements associated with the postcolonial era, the articles of the UDHR brought together in one document the universal meanings of human rights. This struggle for universal human rights within the evolution of justice has not followed anything resembling a linear pathway forward in time and space.

            Every generation of rights has not only met with resistance, but most major strides on the course to human rights efficacy have also experienced some kind of backlash or setback. To be sure, reactionary forces have not typically nullified each progressive chapter in the acquisition of human rights. In fact, the collective evidence is otherwise: “History preserves the human rights record as each generation builds on the hopes and achievements of its predecessors while struggling to free itself from authoritarianism and improve its social conditions” of the future (Ishay 2004, 4).

Background

Social justice may be thought of simply as “the common good through the equalization of goods or services” (Sadeghi and Price 2007, 4). Or more elaborately defined as “the fair distribution of opportunities, rewards and responsibilities in society, as well as principles and institutions for the distribution of meaningful social goods – income, shelter, food, health, education, the freedom to pursue individual goals” (Hudson 2013, 432).

An Italian Catholic priest, Luigi Taparelli, coined the term social justice. In his book, Theoretical Treatise on Natural Law (published between 1840 and 1843), and based on the teachings of Thomas Aquinas, he claimed that the components of social justice were products of “natural theology, in which morality, based on religion, ought to be sought after by all people, who, under God, must adhere to their moral beliefs in doing what is right” (Sadeghi and Price 2007, 699). In the mid twentieth century, the author of “The Act of Social Justice” in 1948, the late Father William J. Ferree (1997) had characterized social justice as the duty in which each person in society is morally obligated to care for the common good of all.

Probably the most influential theory of social justice has been that of John Rawls’ notion of ‘justice as fairness’ in his A Theory of Justice (1972), which draws upon both the basic social contract theory and the Kantian philosophical tradition of justice as impartiality. Like most theories on social justice, Rawls focused his concerns to answering two fundamental questions. “First, how the rules for a fair distribution of meaningful social goods can be determined; second, how much or how little inequality is permissible in a socially just society” (Hudson 2013, 432). In response to the first question, Rawls answers that the rules and institutions of a just society can only be obtained by people acting in an unnatural position of ignorance of their own position or behind a ‘veil of ignorance’. Accordingly, he is suggesting that a fair distribution can only come about establishing rules or procedures designed for the purposes of securing impartiality as much as possible. With respect to the question of inequality/equality or to Rawls’ ‘principle of difference’, he maintains that social and economic inequalities are just to the extent that they benefit everyone.

In answering these questions, Rawls sought to strike a balance between equality and freedom. Alternative theories usually prioritize one or the other. For example, Marxist theories line up behind equality; libertarian and neo-liberal theories line up behind freedom. A variant of welfare-liberalism articulated by Michael Walzer in Spheres of Justice (1982) defends pluralism and equality, wherein he argues that diverse goods and services should have different degrees of social distribution on the basis of individual need.

On the ‘Evolution of Justice’: Equal, Restorative, and Social

Justice is an evolving phenomenon in its ideation, ideology, and implementation. As social constructions and ideal systems, justice discourses and practices cannot be separated from the modern evolution in law, justice, and society. Or, in what can be described as a three-tier revolution in just-ology or in the entitlements of all human beings to share in common the exact same formal rights as everybody else regardless of their class, race/ethnic, gender, religious, national, or sexual affiliation (Ishay 2004). When each of these models or systems of justice first emerged, they represented a particular stage in the struggle to expand individual rights in relation both to the collective rights of societies and to the rights of the nation-states. Ultimately, these rights were extended to all peoples as universal human rights.

         The first generation of rights represented the struggle for ‘equal justice’ or the struggle for ‘negative rights’. These called for a restraint from the uninhibited state or monarchial power over the individual. This generation of rights was derived from the American and French revolutions that both struggled to gain freedom from arbitrary rule. Collectively, these rights, articulated more recently in the Civil and Political Rights of the International Bill of Rights (1966), have shaped governmental control by ‘rule of law’ rather than ‘rule of man’. In the domains of crime and crime control, these rights have at least formally established an impartial and fair enforcement of the procedural and substantive components of the criminal and civil laws.

            The second generation of rights represented the struggle for ‘restorative justice’ or the struggle for ‘positive rights’.  These called for ‘affirmative’ actions by and/or on behalf of the state for pursuing the common welfare. Rooted in the struggles to democratize governments and to make them responsible to the needs of people living in ‘post’ laissez-faire monopoly societies as a whole, these rights have shaped the sociopolitical obligations or minimal duties of the state to facilitate the self-actualization of individual human being (Barak 1980). These rights were also collectively articulated in 1966 in the Economic, Social, and Cultural Rights of the International Bill of Rights. In the domains of crime and crime prevention, these have included an emphasis on community social welfare, penitence and redemption, and offender-victim reconciliation.

            The third general of rights is represented by the contemporary worldwide struggle for ‘social justice’ or the struggle for universal human rights. Evolving out of the emerging conditions of global interdependence, these rights call for international rules of interaction, such as the establishment of the International Criminal Court in The Hague in 1999. These universal rights also recognize that the delivery of negative and positive rights for all cannot be satisfied within the body of individual states acting alone. In the universal struggle for social justice, world peace, and victim reduction, global emphases have been on ending world hunger, forgiving debt to underdeveloped nations, and treating victims of AIDS/HIV and other debilitating and/or life-threatening diseases, famines, tsunamis, and so forth worldwide.

Equal Justice

In most developed nations like the United States, equal justice assumes the rationality of the prevailing political, economic, and social arrangements in general and of the administration of criminal justice in particular. Within those systems of justice, where criminals are viewed as ‘bad’ and ‘mad’, they are typically disconnected from their social conditions and from their class, racial/ethnic, gendered, and sexual relations. Whether defendants are from at-risk social environments or from privileged milieus, these facts are not formally relevant to the accused or convicted offenders as all are subject to the same ‘equal justice’ or due process of the law.

Ignoring the affects of social structures and ecologies of crime, these models of equal justice have traditionally not considered the interests of either the injured parties or their perpetrators or the communities from which they originate. Furthermore, the policies of equal justice do not take into account the concept of equal sanctions for unequal offenders or victims. Similarly, the unequal treatment of analogous social injuries or harms perpetrated by the powerful and the powerless, respectively, serve to reproduce the status quo of crime, victimization, and discriminatory justice for many.

The contemporary model of equal justice practices in the U.S. has it roots in the mid-eighteenth century, when the European age of reason or enlightenment was busy reforming the excessively arbitrary and barbaric justice practices from the medieval period. Although not driven by revenge or vengeance, these utilitarian and practical applications of equal-formal (retributive) justice are repressive as these help to perpetuate a class of marginally ‘dangerous’ offenders. At the same time, these policies of equal criminal justice downplay the value for most rule violators of flexible sentencing and community alternatives to imprisonment.

Restorative Justice

Fundamentally, restorative justice systems are about decentering punishment in regulatory institutions. At the same time, restorative justice acknowledges the place that punishment has as a means of communicating the ‘shamefulness” of the acts in question (Braithwaite et al 2006). Restorative policies and practices of justice assume that most offenders and nonoffenders, whether perpetrators, victims or both, fundamentally share an intrinsic humanity (Zehr and Mika 1998).

            Modern practices of restorative justice have their legal roots in the ancient patterns of such diverse cultures as the Sumerian Code of UrNammu (2050 BC), the Hebrew Scriptures and the Code of Hammurabi  (1700 BC), the Roman Law of the Twelve Tribes (449 BC), and the earliest collection of the Germanic tribal laws, the Lex Salica (AD 496). Each of these legal systems required that offenders and their families settle accounts with victims and their families, not simply to ensure that injured persons received restitution or compensation but also that communities were reestablished or restored to their former peace. Similarly, in many pre-colonial and indigenous societies around the world, sanctions were also primarily compensatory rather than retributive, intended primarily to make victims whole or to restore them to their previous status (Barak et al 2010).

            Restorative justice is being pursued when the focus of justice is: on the harms of wrongdoing more than the rules that have been broken; on the victims and offenders working toward the restoration of the former and the support of the latter in understanding their transgressions and meeting their obligations to make things right again; and, aimed at empowering those affected parties in the processes of justice and dialogue. For example, contemporary systems of Japanese justice, which emphasize ‘confession, repentance, and absolution’ are about compensating their victims and restoring community peace (Van Ness and Heetderks-Strong 1997).

            Today, the idea of restorative justice has come to have many different meanings and practices. It has come to be associated with innovations in community mediation, problem-solving justice, victim-offender reconciliation, alternative sentencing, and community service (Daly and Immarigeon 1998). Regardless of the myriad of practices that seem to be part of a larger movement to incorporate restorative justice programs throughout communities, they all share in common the desire to move beyond the illegality to the more fundamental needs of human dignity and respect as well as to the mediated sources of conflict and dispute resolution.

            Unlike equal justice systems that revolve around how much pain and suffering has been inflicted by the actions of the wrongdoer, restorative justice systems revolve around how much harm has been repaired or will be prevented (‘less harm’). Restorative justice systems are preoccupied with both the interpersonal and larger structural-mutualistic relationships involving offenders, victims, family members, and the neighborhoods from which they are spawned. More specifically, restorative justice emphasizes the recovery of the victim through the processes of redress, vindication, and healing, on the one hand, and of the offender through the processes of fair treatment, reformation, and recompense of the victim, on the other hand.

            Finally, restorative justice relies on both the formal and informal mechanism of social control as it supports the role of government as responsible for preserving law and order and the role of the community as responsible for preserving peace and justice. Most importantly, for example, restorative justice involving victim-offender encounters or reconciliation programs tend to humanize both offenders and victims to the other and “permits them substantial creativity in constructing a response that deals not only with the injustice that occurred but with the futures of both parties as well” (Van Ness and Heetderks-Strong 1997, 89).

Social Justice

While equal justice systems revolve primarily around retribution between the offender and the state, and restorative justice systems revolve primarily around reparation and healing between the offender and the victim, social justice systems venture beyond the immediate conflicts--perpetrators, victims, and communities-- to an account of the larger political, economic, and social arrangements. Social justice models incorporate, for example, the patterns of social inequality or disadvantage as well as the patterns of privilege, power, and advantage, which make people and their communities susceptible or not to the experiences of criminal harm and to the processes of criminalization.

            The visions of equity and fairness associated with the policies of social justice are broader and more ambitious than those visions associated with the models of equal and restorative justice. Social justice models expand the notions of conflict and injury beyond what the sovereign law recognizes to include those harms identified as part of an evolving set of human rights, some established in treaties and covenants, some in international resolutions or tribunals. The violations of any of these fundamental rights constitute what are known in the world community as ‘crimes against humanity’. 

These offenses generally are committed by policies/practices or by the authorities or agents of the state, such as in the violation of a person and/or a group’s inalienable rights to be free, for example, from exploitation, slavery, impoverishment, hatred, discrimination, or genocide. In this context, social justice recognizes harms, injuries, offenses, wrongs, crimes, and violations that are not merely expressions of interpersonal conflict, but also expressions of the organizational, institutional, and structural relations of the prevailing political, economic, and social arrangements. Accordingly, to address the underpinning structural inequities or injustices in those arrangements, social justice stresses the importance of public policies of ‘harm reduction’ that go beyond the confines of the criminal justice systems.

Therefore, attention is not only paid to the obvious crimes of the powerful, such as those committed in corporate America or on Wall Street, but also more generally to the economic harm and social victimization caused by all types of deregulation, from environmental to financial, to the lack of social and human capital formation, and to the oppression and exploitation of a growing multiethnic underclass in the United States. To the extent that these social forces create crime and crime control systems, in the forms of equal or restorative justice, which are repressive in the sense that they secure a legal order that reinforces inequality and privilege, social justice models advocate a ‘war’ or intervention against those forces.

In the evolution of justice, what distinguishes social justice from equal justice and restorative justice is that only the former model of justice struggles to escape the confines or shackles of bourgeois legality. The problems with capitalist Constitutions like the United States’ are the many claims that equal rights and responsibilities have been substituted for the harsh realities of class domination. In other words, by way of the Constitution, the struggle over the legitimacy of social acts is removed from the plane of morality and society. In turn, these social actions or relationship are relocated in the plane of law and politics. Justice is no longer what is fair but what is legal and politically expedient as decided mostly by lawyers and judges playing by the capitalist rules of the game (Ollman 1987).

Ultimately, to overcome class domination and/or to achieve social justice, political economies and societies of the world will have to transition from capitalist formations to socialist formations. Otherwise, social justice for all will remain an unrealized ‘pipe dream’ trapped in the realities or contradictions of capitalist inequalities. In the mean time, piece-meal or half-hearted reforms in the name of social justice are resumed and advanced.

For example, some proponents of social justice advocate on behalf of ‘visionary gradualism’ or ‘free-market socialism’ (Harrington 1989). Other social justice proponents talk in terms of democratizing and humanizing capitalism (Shiller 2011). Grounded in the global principles of feminist, antiracial, and ecological justice, these views still ascribe to the political economies of capitalism. At the same time, these ‘social justicians’ believe in the eradication of social subjugation, oppression, and exploitation as well as in the establishment of fundamental human rights for all. They oppose unenlightened self-interest, unregulated markets, and unfettered victimization (Barak 2012).

The Limitations of Equal Justice and the Struggle for Sovereign Justice

As Anatole France wrote about the inefficacy of equal justice in his best selling The Red Lily in 1894, “The law, in its majestic equality, forbids rich and poor to sleep under bridges, to beg in the streets, and to steal bread’” (Quoted in Sadeghi and Price, 2007, 699). Then and now, such laws as those are naturally only relevant to the marginal, to the destitute, to the homeless, to the mentally ill, and so on. Hence, when legal evaluations or assessments of justice—criminal or civil—ignore differences of class, ethnicity, gender or sexuality in particular and socioeconomic statuses in general, or when they falsely treat unequal persons or corporations under the law as one and the same, they ‘blindly’ reinforce these differences or inequalities.  

            Similarly, because of an ideological preference for bourgeois legality with its overemphasis on notions of individual-equal justice, most critiques of the administration of justice fall short. Instead of focusing on the substantive inadequacies of the criminalizing and penalizing processes and the selective and differential outcomes that systemically hurt the powerless and benefit the powerful, most critiques focus on the procedural irregularities or the applications of due process and equal protection under the law. The point is that there is a long list of harms and injuries that have been and/or could be prohibited by law that victimize millions of people daily, which are commonly treated by the legal order as if these actions or omissions were/are ‘beyond incrimination’ (Barak 1991a & b; Barak 2012).

            Moreover, the consequences of these selective enforcements, differential applications, and inauspicious omissions are not only counterproductive for alleviating pain or reducing harm, but also for obtaining social justice for the most marginalized members of society. For example, the unsuccessful policies of the ‘war on drugs’, mandatory sentencing, and the widening of the nets of crime control on less serious offenders, has adversely affected African American families and to a lesser extent Latino American families.  In the case of the former, the large-scale removal of young black males from their communities has contributed to the depletion of the supply of potential marriage partners for young black females and to the accumulation of generational impoverishment. Some criminologists have argued that these social relations of crime, victimization, and punishment have encouraged young female-headed households, creating precisely the types of family formations that have been linked with higher rates of street crime and domestic abuse when not given adequate social support (Currie 1985; Messner and Rosenfeld 1994; Foster and Hagan 2009).

            In turn, these counter-effective policies coupled with assembly line, plea-bargained, and bureaucratized equal justice for the marginal classes helps to reinforce stereotypic images of criminals. These exclude high-powered corporate executives, emphasizing instead low-life predators who murder, rob, assault, kidnap, and do drugs rather than white-collar looters who inside trade, contract without bidding, or commit high-stakes securities fraud. To be clear, the point of this critique is not to argue against equal justice in the administration of laws. It is to argue against equal justice as the end point of justice rather than as a means to complementing other systems of justice. Indeed, all agents or workers of the various equal justice systems should aspire to act impartially or neutrally, according to both the letter and the spirit of due process and equal protection under the law. However, to achieve social justice, legal-equal justice represents the most elementary of steps.

            In addition, equal justice needs to be assisted by the goals and objectives of restorative and social justice if the mass victimization of peoples around the world is to decline. These latter models of justice offer substantial ways to improve the quality of justice beyond the existing legal processes, helping to better curb and reduce all forms of harm and injury—personal, organizational, institutional, and structural—than equal justice systems do.       

The Limitations of International Law and the Struggle for Global Justice

The contradictions in the spirit and the enforcement of international law inhibit a reduction in both the worldwide victimization of people and in the reproduction of crime and violence. This is because international law does not facilitate the ability of the global community to satisfy the basic human needs and rights of all people.  At its core,

                     International law is a limitation on autonomy,

                        yet one that has its maximal force when other

                        states are willing to act in its name. The twentieth

                        and twenty-first centuries have shown that when

                        states elect to act ‘in the name’ of international

                        law…they often do so (or refuse to do so) out of

                        their own political and economic interests rather

                        than within the interests of an international social

                        order (Mullins and Rothe 2008, 26).

The radical vision of social justice shared below stems from a humanistic, democratic, and participatory world order based on “mixed” economies of public and private ownership where people cooperate in both the work and leisure of their local and global communities. It is not that societies will have removed their economic and other forms of competition. Rather these reciprocal interactions of capital and labor will work on the premises of ‘fair’ rather than ‘free’ exchanges of goods and services. These social relations are also underpinned by sustainable and balanced eco-systems. A global order of this kind strives for ecological harmony in the context of climate change and in the ways in which societies and technologies interact with their natural environments to protect all forms of life and habitat (Barak 2009).

Human Needs

At the beginning of the 21^st century we live in a world of shrinking resources but not in a world of scarcity of goods and services. Thus, in a world organized around ecological sustainability a primary goal of global production of international economic activity should be for the provision of the necessities of life for all of earth’s inhabitants. These basics should include but not be limited to food, shelter, health care, childcare, education, social services, culture, art, leisure, recreation, work, peace, and security. In brief, social production for use and profit by all so that whole groups of people do not have to needlessly suffer.

Human Rights

The objective here is to maximize and extend civil and human rights for all people, which means also curbing those abuses and discriminatory actions based on or stemming from differences due to age, ethnicity, gender, sexual orientation, religious affiliation, disability, or migratory status. For example, with regard to sexual orientation, the end of all anti-gay, lesbian, bisexual, and transgender restrictions in the law. Or concerning age, there are special rights that may be attached to children and seniors.  Regarding women, the reduction and elimination of all forms of sexism, especially that revolves around sexual harassment, violence, and exploitation. Finally, concerning migratory workers, a global world order would recognize the rights of people to freely move across borders to live, visit, and work as they choose.

Human Justness

Perhaps the toughest struggles for social justice have to do with obtaining human justness in everyday or ordinary public-private contracts, and for those exceptional or extraordinary atrocities. In the case of the former, are the ways in which contracts or ‘right to work’ laws adversely affect workers in general and current or former inmates in relation to the penal-industrial complex in particular. In the case of the latter, there are the largely inadequate or unresponsive actions to acts of genocidal rape or to other crimes against humanity, such as torture. With domestic and international laws in place to challenge these various forms of harms and social injuries, there is hope that such behavior might be reduced, if not deferred, altogether. Without either changing the fundamental international motivations and opportunities of a global economy and/or establishing the necessary constraints and customary controls to curb these types of antisocial behavior, governments and their proxies in specific situations are under little or no pressure to refrain from their continued abuse.

Future Prospects

Dialectically, within an ‘evolving’ system of social justice and a developing system of capitalism worldwide, there are presently more middle classes emerging than there are middle classes disappearing. At the same time, as the wealth gap expands and inequality accelerates, the competition for uneven wage differences intensifies at home and abroad. Meanwhile, the hegemonic neoliberal policies—austerity, privatization, and deregulation—that are directing both domestic and international development, all work against the materialization of redistributing the wealth for all human beings.  In addition to expanding or widening the universality of humanitarian law and practice, the struggle for social justice has to consolidate its effort, nationally and supranationally, to resist those harmful policies of hierarchy and privilege. The struggle for social justice should also devise alternative strategies for democratizing and humanizing the vagaries of capitalism.

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