We often hear it said that we confront difficult trade-offs between social justice and liberty, between equality and liberty, for we can not interfere with the distribution of resources in society without interfering with the liberty of individuals.
A jurisprudential illustration of the tension inherent in trying to equate these concepts is that of majority rule. Though it is widely accepted as the fairest decision making procedure in politics, it may entail unjust decisions about individuals’ rights.
Given that a key aspect of political fairness is equality of representation of opinion, would not a “checkerboard” statute on the abortion issue (whereby women born in odd numbered years would be entitled to abortions but those born in even numbered not) be conducive to the concepts of fairness and justice? Such a statute might be said to be fair as it would distribute political power in proportion to the views of either side and rejection of the checkerboard solution will lead to greater injustice to the extent that one side loses out completely.
However we would reject such a solution where matters of moral principle are at stake and would prefer a process of deliberation so as to reach a collective decision which lays down a coherent legal principle. This is one illustration of how the law can struggle to reconcile varying, sometimes conflicting interests such as equality and liberty and uphold the principle of social justice.
What I find interesting about our universalist moral intuition these days is its narrow focus, especially when framed in the discourse of human rights. Within that framework we focus on actions that are universally wrong rather than those that are universally right. We find it far easier to proscribe, say torture and rape, but we are reluctant to prescribe how people ought to act and live their lives. This should not come as such a great surprise to us given the political space that liberals have traditionally occupied in the middle ground, which has rendered them susceptible to criticism from both conservatives and radicals.
Here I shall list only three examples of the limits of social justice in order to highlight how even legitimate attempts to uphold this principle can neglect the interests of the weaker members of society. My account is by no means exhaustive. Rather my primary aim is to demonstrate the sheer magnitude of the task by way of an outline of some of the issues that present themselves in practice.
1) The preventive effect of incapacitation:
The incarceration of active offenders physically isolates them from the opportunity to commit crimes in society at large, whereas crime prevention through deterrence requires that the would-be offender weigh perceived benefits and costs and that perceived cost be grounded in actual sanction policy.
One of the great critiques of the penal system is the limited capacity of its deterrent effect. However estimates of the average number offences committed based on self-reports of prison inmates are not reliable and often vary wildly. The distribution of individual offence rates is highly skewed with a very small percentage of the offending population committing crimes at extraordinarily high rates.
Consider the following approximation of the distribution of self-reported robberies from a sample of California prison inmates reported in an analysis by Visher (1986). She found that on average the inmates reported committing 43.4 robberies per year free. Yet she also found that around 50% of the inmates reported committing fewer than 4 robberies per year free. Why the large discrepancy between the average and median robbery offence rate? The answer to this question is that about 5% of the sample report committing 180 or more robberies per year free. This small group of very high-rate offenders greatly increases the average offending across all offenders in question.
The large discrepancy between mean and median has important implications for policies intended to capitalise on incapacitation effects because it implies that the vast majority of offenders have offence rates that are far smaller than the average for all offenders. This means that if the sentencing of offenders is guided by a policy of public protection, that is to protect the public from the threat of the theft of their property by means of incapacitation of offenders, there is a great risk of incapacitating most offenders for longer than public protection requires when based on average offence rates.
One obvious solution to the problem of the large skew in the distribution of offending is to attempt to take advantage of the skew - to identify the high-rate offenders (say for example offence rates at the 90th percentile) and sentence this small contingent to lengthy prison terms. However such a strategy, though it does hold the appeal of being economical, is subject to a number of ethical legal, ethical and practical problems, not least of which is the danger of incarcerating people for what they might do as opposed to what they have done.
2) The economic analysis of law:
The modern incarnation of utilitarianism depends upon the proposition that the rational man or woman will always choose to do what will maximise his or her satisfactions. And if they want something badly enough, they will be prepared to pay for it. Hence it is argued that judges frequently decide hard cases by choosing an outcome which will maximise the wealth of society, having been guided (mostly unconsciously) by these economic considerations.
Let us postulate a situation in which one outcome is the most ‘efficient’. A factory emits smoke which causes damage to laundry hung outdoors by five nearby residents. In the absence of any corrective measures, each resident would suffer £75 in damages, which amounts to a total of £375. The smoke damage may be prevented in one of two ways: either a smoke-screen could be installed on the factory’s chimney, at a cost of £150, or each resident could be provided with an electric tumble-drier at a cost of £50 per resident.
The efficient solution is obviously to install the smoke-screen since it eliminates total damage of £375 for an outlay of only £150 and it is cheaper than purchasing five electric driers for £250. But the question is whether the efficient outcome would result if the right to clean air were assigned to the residents or if the right to pollute is given to the factory.
In the case of the former, the factory has three choices: pollute and pay £375 in damages, install a smoke-screen for £150, or buy five tumble-driers for the residents at a total cost of £250. The factory would naturally opt for installing the smoke-screen: the efficient solution. If there is a right to pollute, the residents have three choices: suffer their collective damages of £375, buy five driers for £250 or buy a smoke-screen for the factory for £150. They too would opt for the smoke-screen, providing that they would a) have the capacity to come together to negotiate with the factory and b) incur no costs in doing so (‘zero transaction costs’). But real life is not that simple and certain costs would be incurred in this process.
Therefore although it is argued that the above approach, that of wealth maximisation, allows a reconciliation among utility, liberty and even equality as competing ethical principles, this reconciliation is not often achievable in practice.
3) The rationality of penal excess in colonial India:
As with colonial legal transplants, human rights law is dedicated to transforming family structure, land and labour relations and the tie between the individual and the state. Usually the proponents of human rights are the very same colonial powers, and their targets are the ex-colonies. Often the old imperialist habits of contrasting more with less advanced societies, civilization with barbarism, creep back into the debates, and the move to human rights establishes the terrain of social justice as the law and the state whilst it imports through the back door assumptions about oppositions between rights and culture that were fundamental during imperialism and are still embedded in human rights rhetoric.
Analysis of the turn to severity in the penal system in recent years has emphasised a number of factors, which are all said to have underpinned a departure from modern penal doctrines. However there are a number of features of British penal law, criminal procedure and administrative rules in 19th century colonial India that suggest that current western trends are recurrent if not defining features of the modern state. One example is the practice developed during the Mutiny-Revolt of 1857 involving the exemplary punishment of mutineers (or suspected mutineers) who were blown away from the mouth of artillery cannon.
During the early stages of the native uprising the use of the cannon was intended to have a broad general deterrent effect but when these effects failed to take hold, it was redescribed as a retributive measure marking out not only the gravity of the crimes but also the dominance of British military and political authority. Crucially throughout the course of the Mutiny, techniques of execution continued to operate through the structures of law - the courts martial of military jurisdiction - pointing to the importance of such structures to the ideals of rationality and legal-bureaucratic process that legitimised British rule.
In fact the power of penal excess lay in its measured application as this was deemed to be the most humane, instantaneous mode of execution. The modernist principles of restraint and the rational calculation of cause and effects, costs and benefits, guided the juridical use of execution so that it retained coherence with other, less severe, measures within the penal framework.
These three examples demonstrate how restricted the scope of the law really is when social justice is the objective. However it is important to remember that although the pursuit of social justice through the terrain of the law might be hampered by in the ways which have been outlined, this is not to say that there is no merit in the pursuit.
