Justice seems to come in a range of flavours: formal justice, procedural justice, restorative justice, retributive justice, transitional justice, and social justice, to name a few. (I’m actually starting a list. When it looks useful, I’ll post it.) This suggests that there is some underlying concept of justice itself that is generic to all those types of justice. So I’m taking as my starting point a proposition I’ve lifted from Agnes Heller (Beyond Justice, 1987) to the effect that justice is not an end in itself but rather a means of securing other values. Justice is the state of being that occurs when those values are enforced. Heller actually refers to this as social justice which is something I’ll have to address at some point because in my use of it I think it will reflect particular values. The idea, though, that justice is a means rather than an end is intriguing. It means that our starting point in understanding justice is the values of any given society.
One of the things I like about Heller’s work is that she is searching for a pluralistic definition of justice, one that is not linked to any particular state or culture. Justice varies from society to society. Rather than holding up some ultimate litmus test for deciding if something is just or not, her approach acknowledges that we tend to judge the justice of other cultures on the basis of our own, rather than on their terms. It makes us accountable for the values on which we are basing our judgment of others.
I particularly like the fact that Heller doesn’t try to advance any particular value as a ‘trump card’ – one that we are supposed to resort to as the highest value. Liberals, of course, make liberty the trump. I love how Heller dispenses with Rawls (more on him in another blog entry). In dealing with his proposition that if we didn’t know who we would be in what society and at what time, what he calls a veil of ignorance, we would choose liberty as our highest value. Heller accuses Rawls of having pulled that rabbit out of the hat after having hidden it there in the first place! However, Heller acknowledges the need for a moral starting point in her understanding of justice. She chooses a Kantian position that people should be valued as ends in themselves and not just means to someone else’s ends and adopts a version of the golden rule.
In modern liberal democracies, the values we seek to protect are taken to include the right to life and the freedom to live a life we choose for ourselves. These seem to be grounded in some notion of the moral value of each of us as individual human beings. Valuing life and life choices seem pretty straight-forward at first. But it doesn’t take long to discover that this is actually treacherous ground. When does life start? When does it end? For whom, how long, and under what conditions do we prolong life? And freedom to do what or from what? So if the values of life and freedom are not as clear cut as they first seem, how do we decide what they really mean or if they are even the values we want most to protect?
I started the previous paragraph by saying that ” in modern liberal democracies“, we take certain values as foundational. What difference does it make that we are democratic in our decision-making? What values are built into that social condition? Again the notion that we have value as individuals but also that we have an equal place, at least politically, in society.
And it isn’t long before you start asking questions like, who says and why? The Canadian constitution aims for peace, order, and good government. The American constitution seeks to protect life, liberty, and the pursuit of happiness. In France, its liberty, equality, and fraternity. The courts have their say too. What about you and me? Where do we figure in this? What do we have to say about what values matter most to us? Once every few years through the proxy of a vote?
This suggests that the question of which values we want to secure in achieving justice is not entirely settled. In fact, I doubt it will ever be. Rather, I think we’re looking at one of those wicked problems that has no final solution but rather calls on us to put human relationships and social interactions at the center of our efforts to find better solutions.
So if justice is about securing the values we care most about, and if those values are not only not self-evident but unlikely to ever be settled, what are we to do? It looks to me like we need to engaged in an on-going, informed multi-sectoral (political, legal, religious, social, academic, public) dialogue about the kind of justice we want and to call on our legal, political, and social institutions to be transparent about the values they are advancing as they act as our agents in effecting justice.
As I begin my exploration of the role of public legal education in advancing the cause of social justice, I will be trying to keep in mind those fundamental insights and the contentious nature of the justice project itself.