Documente Academic
Documente Profesional
Documente Cultură
Belinda Carpenter
Matthew Ball
2012
Published in Sydney by
The Federation Press Pty Ltd
PO Box 45, Annandale, NSW, 2038.
71 John St, Leichhardt, NSW, 2040.
Ph (02) 9552 2200. Fax (02) 9552 1681.
E-mail: info@federationpress.com.au
Website: http:/ jwww.federationpress.com.au
National Library of Australia
Cataloguing-in-Publication entry
Carpenter, Belinda J
Justice in society/ Belinda Carpenter; Matthew Ball.
Includes index.
978 186287 895 2 (pbk)
Justice, Administration of- Australia.
347.94
Front cover image: All reasonable attempts to gain copyright permission have
been sought by the authors and if any have not been sought they would
appreciate hearing from copyright holders so future editions/printings contain
the appropriate copyright.
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1 Introduction
o
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illustrate the inconsistent ways that the criminal justice system responds
to identical crimes committed by differently advantaged groups. As such,
this narrative on the criminal justice system appears to support the second
story of justice- that it is unachieved, and that oppression and inequality
persists - at least for certain groups in the community.
Additionally, when we consider the justice of our society, the emphasis
is on fair rules, equal treatment and impartial authority. For example, equal
opportunity legislation is now in place in all Western liberal democracies to
guard against discriminatory employment practices. We no longer advertise
certain positions for men or women, and we cannot require a person of a
certain age, ethnicity or religion to perform a particular job. This does not
mean, of course, that we will all earn the same amount of money. A just
society will still contain rich and poor. Rather, what is important is that those
who do earn more have gained that high status position in a 'fair race'. We
hold firm to this idea of a fair race and argue vehemently that those who are
the most successful deserve the highest rewards because they have earned
it through fair processes and hard work. Once again, this narrative supports
the first story that freedom of choice to work hard and use one's natural
abilities will result in high status positions - a just reward for sacrifice and
delayed gratification.
Yet, much like there is an alternative narrative about the criminal
justice system, there is another way of looking at justice in our society.
This is premised on the idea that there are enduring constraints on people's
freedom to act, even though people may not be aware of them. What this
means is that while we all experience our lives as individuals and feel that
what happens to us is the result of our abilities, choices and good or bad luck,
a great deal of our life is shaped by social patterns of behaviour that operate
at a collective rather than individual level. People may seek the same goals,
but not all reach them because the amount of available prizes is limited. In
this case we compete with each other and the outcome may be only partially
dependent on our individual efforts. We might seek a position in a large
company only to find that there are 50 applicants, all of whom have the
required qualifications. Whether we are successful in gaining that position
then becomes dependent upon the judgment of others. This means that every
individual is born into a society of institutional practices that structure their
potential for action. Depending on the family into which you are born, for
example, you will learn a range of practices and skills that give you (more or
less) capacity to influence the actions of others and achieve your own ends.
So, this story argues that some people in society are more likely to achieve
success than others based on the family they are born into and, if that is the
case, then we do not, at present, live in a just society.
The last area that needs some attention in our quest to identify what
constitutes justice and injustice in Australian society relates to the role and
purpose of welfare in a just society. It has been argued that one of the marks
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Moreover, we also know that risk taking is a large part of the socialisation
attached to masculinity, but risk taking is also a large part of criminal behaviour. It certainly is one explanation for the over-representation of young men
in the criminal justice system, as compared to young women. Thus, in this
story, our inherent moral worth may be the basis for our humanity, but it is
not the only reason that we act the way we do.
In society more generally, how do these contrasting ideas about free
will and social order help us think about justice and injustice? The ideal of
democracy gives us some insight. Democracy literally means 'rule by the
people' and while it has its origins in ancient Greece, the modern form of
democracy, popularised from the 18th century and the basis of Australian
and most other forms of democratic government, is liberal democracy.
Underpinned by the two narratives discussed above- that humans are moral
and rational beings but also that humans have an inherent desire for social
order -liberal democracies are said to be founded on the idea of 'the social
contract', where human freedom is traded for social security. Democracy is
thus a compromise between these two organising features of freedom and
constraint, free will and social order.
In the first story, the rights associated with your inherent moral worth
are most clearly realised through your freedom to pursue those goals.
Democracy is thus first and foremost about freedom, because to let others
determine goals for you without your participation is tantamount to becoming a slave. In this instance, freedom is bargained for the benefits of social
order, but there are strict limits placed on the role of the state in the affairs
of the individual. This approach in political philosophy is termed liberalism.
For John Stuart Mill (1806-1873), a prominent liberal philosopher, the only
valid 'interference' into the personal liberty of the individual by the state is to
ensure that each person contributes a share to the running of society through
taxation. This was exemplified in the mantra of the American Revolution
(1775-1783)- 'no taxation without representation'- and can also be clearly
seen in the preamble to the American Declaration ofIndependence in 1776:
'We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness'. In modem
democratic nations like the United States and Australia, a pre-eminent status
is placed on freedom, based on the belief that an individual will make use
of the democratic process to access their inalienable right to pursue their
goals of happiness and wellbeing.
However, in the second story, there is an emphasis on the other
element of the social contract in a democratic society -protection and
security. In contrast to the first story, where equality is gained through
freedom, here it is argued that freedom can only be gained through equality. Such debates certainly have currency in Australian society. Take the
example of freedom to engage in the political process, for example. This
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despite our differences. People are equal even if not identical. Following
on from this, we then assume that the measure of a just society is to treat
everyone equally and we make the initial assumption that this means treating everyone the same. The criminal justice system is one example of this in
action, as we have seen. However, as our discussion of welfare support and
grades of taxation showed, a just society can also treat people differently.
So, is justice about treating people the same or treating them differently?
With regard to the first story, which emphasises freedom and rights,
the answer would be that all people have equal moral worth and should be
treated the same, unless there are relevant reasons not to do so. Relevant
reasons might include taking a disability into account in the time required to
complete an exam, or taking away your right to vote if you are imprisoned
for a serious crime. In both of these cases, there is a relevant reason not to
treat people the same, when they might otherwise expect to be treated as
such. In this first story, equality is based on the principle of consistency.
The desire is to achieve a fair starting point for people - a level playing
field- so that some people are not disadvantaged in terms of employment,
access to housing, or educational achievement. In this story, inequality and
injustice only occur through discrimination at an individual or group level.
By making laws and policies which make such discrimination illegal through equal opportunity legislation for example- it is argued that equality
should prevail and that your social position will be gained by individual
achievement rather than by birth. It is accepted that individual positions are
unequally rewarded, and what is crucial is fair access and opportunity. This
is because, although Australia does not claim to be equal, it does claim to
offer equal opportunity to all in the competition for unequal positions. In
this story, society is unequal, but inequality is fair because the processes
that have produced it have been just.
The second story, which emphasises the constraints on free will
through social order, is critical of the continued existence of inequality
in Australian society and argues that this demonstrates that Australia is a
fundamentally unjust society. This is not, however, to argue that inequality
per se is the issue. In a fair competition there will always be winners and
losers. Rather, this second story is concerned with the patterned nature of
social inequality, and argues that such patterns point to the fact that the 'race'
is not fair- that there is not a level playing field in society. By identifying
the tangible differences in life chances between different groups of people,
this story argues that only certain people benefit from the social, political
and economic resources available within nations and communities. We have
already noted this in relation to political participation, which is patterned
in terms of gender, and over-representation in the criminal justice system,
which is patterned in tenns of race. Rather than placing their faith in equal
opportunity legislation to address these inequalities, for example, adherents
of this second story emphasise the importance of the redistribution of valued
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social goods in order to remove inequality and create a fair society. This
does not mean that all have identical amounts of money and property, but
rather that economic inequality should be kept within reasonable limits
_ that the gap between the richest and the poorest should not be too great.
Moreover, economic equality is not an end in itself; rather, it is a means to
other valued goals like protecting the dignity of people. This is based on the
recognition that economic inequality can lead to the humiliation, exploitation and oppression of those at and near the bottom. It is also the case that
economic resources are not infinite. If those at the top accumulate too many
such resources, there is the real possibility that there is not enough left for
those at the bottom. So, this story argues that treating people differently is
crucial for a just society.
In real terms, how is this equality to be achieved in society, and how
is it to be protected? Most often this is the responsibility of nation-states.
The legal rights given to you as a citizen enact your human rights, which,
as we have discussed, are based on the idea that all humans are equal and
should be treated as such (discussed in Chapter 12). This occurs, for example, through a Bill of Rights in the United States and France, or through
common law and legislative acts in Australia. Legal rights are specific to
each country and, as a consequence, are historically, socially and culturally
specific. This means that individuals in one society might have rights that
people in other societies do not have.
In the first story, the implementation of universal citizenship for all
those born in a country gives access to the plethora of rights available, and
therefore to justice. In Australia, the formal rights of citizenship, protected
by the constitution and the law, are civil and political rights. Civil rights
are those of individual freedom and the liberty of the person, and include:
freedom of speech, thought and faith; the right to justice; the right to
own property; and the right to choose one's work through entering valid
contracts. Political rights involve the right to participate in the exercise of
political power as an elector, parliamentary member or local councillor.
In the first story, citizenship guarantees these formal rights and presumes
equality in these areas as a consequence because, while historically the
legal rights associated with citizenship have been restricted to advantaged
white men, these have been gradually expanded over the 20th century to
provide women, people of colour and the poor with full access to those
rights. However, in the evolution of citizenship, it has always been argued
that equality of citizenship rights does not extend to the economic sphere.
Indeed, in the first story, a precious liberty is the right to become economically unequal, to accumulate property. Thus, citizenship, in the first story, is
the right to be both equal and unequal- a political equivalence in citizenship
and an economic difference in property acquisition.
In the second story, the assumption that the formal rights of citizenship ensure equality for all is questioned. What is argued instead is that
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say it means treating people the same, while others would say that unequals
must be treated unequally.
The irony is that regardless of whichever method is used to achieve
equality, and regardless of which story is followed here, in both cases we
will still produce a fair society (remember our earlier point about justice
having no inherent qualities). Of course, this does not mean that following
one story over another will avoid producing winners and losers. The very
existence of the 'other story' suggests that discussions about how best to
achieve equality will continue. But an ongoing debate about equality does
not mean that no progress is made to achieve justice. What this highlights
for our purposes are a few final points that we would like to make about
justice- that justice is always incomplete, and attempts to alleviate injustice
will always produce new claims for justice.
Equality can never be fully realised for either story, since arrangements of people, social relations, other actors and material resources act as
barriers and networks of resistance to its complete achievement. Any claim
of inequality - and ultimately injustice - from each story merely points to
the limitations and failures of other stories that have played a dominant role
in ordering our society in specific ways. At the same time, these limitations
provide the impetus for new possibilities of social ordering - that is, new
attempts to achieve justice. The answer that is suggested to these limitations
or failures, ironically enough, always appears to be more equality, only
approached in a different way. These ongoing antagonisms and debates
cannot be avoided.
5. Conclusion
In the 21st century, it is common sense to note that liberal democracies like
Australia prioritise the idea of justice in their goals for society, and that the
importance of a fair society, where all are treated equally, is the cornerstone
of govenunent policies. Internationally, the United Nations also prioritises
justice in human rights conventions, which articulate ideas about the inherent moral worth of each person, and historically, revolutions in America and
France have been waged over justice through calls for equality and liberty.
At the same time, injustice is still a feature of modern society, and there is
a strong argument from some corners that inequality may be appropriate
when the processes that have achieved it are fair.
What these stories express is an assumption that the path to a fair and
just society constitutes what might be a linear progression from injustice
to justice, uncivilised practices to civilisation, and unenlightened ways of
treating others to enlightened ones. When we think of the great histories that
have been written about our society, they most often highlight momentous
changes, and are written as a movement toward a "perfectible future". The
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