Justice Alternatives

Pat Carlen, Leandro Ayres França

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9780429886836
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Justice is one of the most debated and reinterpreted of concepts within the fields of law, criminology and criminal justice. Bringing together 35 leading thinkers, analysts and campaigners from around the world, this collection presents a range of on-going struggles for justice from abolitionist, transitional, transformative, indigenous, green and restorative perspectives.

Against a background of contemporary concerns about dark money, plutocracies and populism, these chapters raise questions about the relationships between social justice and criminal justice and between democracy, knowledge and justice. Overall, the chapters also demonstrate the breadth, variety and vibrancy of contemporary criminology and include, amongst other cutting-edge contributions, chapters by John Braithwaite, Michelle Brown, Ian Loader, Pat O'Malley, Joe Sim, Susanne Karstedt, Phil Scraton, Richard Sparks, Loïc Wacquant and Sandra Walklate.

Justice Alternatives is essential reading for students of criminology, criminal justice and law, as well as for other scholars and activists concerned about social justice, policing, courts, imprisonment, mass supervision, rights and privatized justice. The book's emphasis upon the importance of imagination, experimentation, innovation and debate aims to promote an optimism that there are always alternatives to inequality, domination and oppression.

Part 1

Imagine

1

Justice alternatives

Imagine, experiment, debate

Pat Carlen

The philosophers have only interpreted the world in a variety of ways. The point is to change it.

Marx and Engels 1970: 123/1846, emphases in original

Karl Marx’s well-known dictum about the historical role of philosophy applies to no other human phenomenon so aptly as it does to the notion of justice. Certainly justice is one of the most debated and reinterpreted of concepts, and may also be the one proffered most frequently – and promiscuously – to justify international wars, revolutions, state or terrorist atrocities, all types of punishment, civil wars and acts of personal revenge. At the same time, welfare policies, rights discourses, various forms of government and diverse charitable projects similarly invoke justice as being both foundational concept and ongoing objective. In short, struggles for justice are implicated, severally and contradictorily, in what might be characterised as being both the most inhumane and the most altruistic of actions and events. Given that justice is thus chimeric in discourse and desire, it is hardly surprising that what has become an increasingly complex definitional challenge for philosophers and lawyers has, for the world at large, remained a kaleidoscope of confusing and ever-receding promises in recurring struggles. That being so, and if the definition of justice itself is already under erasure from such a maelstrom of meanings and counter meanings, it is not to be expected (or even desired) that all contributors to this book operate with the same notions or definitions of justice. Nonetheless, what does come through in the following chapters is that each of the authors makes the assumption – either explicitly or implicitly – that a just state of affairs in the organisation of human relationships is universally – though not always triumphantly – a good worth struggling for.

Justice Alternatives was conceived as a companion volume to Alternative Criminologies (Carlen and França 2018) which emphasised the richness and diversity of theoretical perspectives informing understandings of lawbreaking, criminalisation and state punishment in Anglophone criminologies since the 1980s. Throughout Alternative Criminologies there is much talk about ‘justice’, and though it was inevitable that, in evaluating theoretical perspectives on crime and punishment, authors frequently had to confront the extent to which different theoretical perspectives embody assumptions about, say, natural justice and/or historical and contemporary relationships between distributive justice and/or procedural justice and punishment, none of the chapters was designed to prioritise considerations of how criminal process and civic governance could be done differently and with less injustice to disadvantaged or discriminated-against groups. Each chapter in Justice Alternatives, by contrast, presents different dimensions of ongoing struggles for justice. Coverage includes: presentation of imaginative alternatives to repressive and discriminatory political and regulatory practices; descriptions of existing oppressions and justice innovations in national, international and cross-national governance and regulation; and debates about a range of ethical anomalies in international and national relationships.

Insistence upon imaginative, creative and open knowledge for the benefit of the many, as opposed to a closing-off of debate in pursuit of ideological protection of the few, repeats the editorial focus of Alternative Criminologies. However, whenever the contributors to Justice Alternatives move beyond imagining, describing or debating alternatives to present injustices, and begin to consider the civil and political preconditions for implementation and sustainability of more equitable social relationships and more just criminal processing practices, the conceptual spotlight tends to shift from justice at large, and focuses more specifically upon the relationships between justice and democracy (see Ian Loader and Richard Sparks, Chapter 8; and see also Carrington et al. (2013); Cheliotis and Sozzo (2016). The related issues of injustice outwith law and law outwith justice are also brought into sharper focus as rapid social change – in relation, say, to global migration or developing technologies – poses new legal and political challenges. These two latter issues of legal and political challenge are the specific domain of zemiology, the study of social harms that are either not recognised by law – injustice outwith law; or insufficiently addressed by law – law outwith justice (Hillyard and Tombs 2004; Dorling et al. 2008).

It is difficult to think of any form of polity other than one struggling to be some sort of participatory democracy (characterised by an informed and meaningfully enfranchised populace sustained by an independent judiciary and a free but legally accountable press) that should have a greater potential for promoting social and legal change aimed at increasing the wellbeing and legitimated powers of the many, rather than the wealth and despotism of the few.¹ (But see John Braithwaite’s arguments for a republican theory of crime in Chapter 2.) Although several commentators, notably Plato, have expressed doubts about democracy’s ability to protect the human needs and rights of minorities against majority rule, others see democratic rule as an unavoidable precondition for an effective distributive justice (e.g. Rawls 1972: 274–275). Arguably, too, it is in representative democracies that emergent pleas for innovative regulation (in relation to planetary safeguards and animal welfare, for example) should have most chances of being heard. (For arguments for Green Justice see Reece Walters Chapter 4.) Where human societies are concerned, insofar as a democratic internationalism manages to promote respect for nations, cross-national citizens and all people with different cultural, ethnic and sexual identities (as well as for those with different class experiences), representative democracy also has the potential to be party to a form of international governance with the capability of establishing and safeguarding universal human rights against self-interested business values (see Braithwaite and Drahos 2000) … Or so it was widely assumed until recently.

International events in the first two decades of the twenty-first century, together with the ascendance of a neoliberal market morality in the politics of capitalist economies (see Simon Winlow and Steve Hall Chapter 3), have precipitated an urgent questioning of the powers of democracies to protect citizen rights, safety and minimum wellbeing (cf. Grayling 2017). The attack on the New York Twin Towers in 2001 precipitated a vengeful free-for-all attack on human rights as states began to develop a variety of justificatory (and nationalistic) narratives for countering all kinds of imaginable (and imaginary) risks with increasingly repressive measures (Strawson 2002). More recently, news reports from investigative journalists and academic studies detail the depredations of international plutocracies and kleptocracies bent upon maximising their wealth and consolidating their power by appropriating to themselves as many human and natural resources as possible, regardless of the costs to other human beings, other species and the planet (cf. Walters 2013: Chapter 4). Democratic controls and checks are proving ineffective against global and digitised crime, digitised disinformation, international criminal cartels, corporate gangsters and state-sponsored accumulation by privatisation and dispossession (see, for instance Myers 2016 on Putin’s Russia; and Jackson, Monk and Gilmore 2017 on fracking policy in the UK). Political and media abuse of the judiciary in the UK,² stunningly bizarre political styles in the US and Russia and divisive constitutional upheavals in the UK and Brazil have recently shocked the citizenry of countries which had previously prided themselves on their democratic traditions and equitable political arrangements.

As denizens of both established and new democracies have been jolted into a shocked realisation that their nominally democratic forms of government are not protecting them against corrupt, irresponsible or incompetent politicians, corporate power, out of control media and dark money (Mayer 2016), demands for the overhaul of constitutions and closer scrutiny and possible review of existing articles of government and administrative and public law have accelerated. Members of fabulously rich and competing global underworlds comprised of outwardly respectable businessmen, politicians, banks and corporations, as well as some traditional international crooks, not only secretly influence home and foreign election outcomes via felonious media manipulation, they also criminally manipulate markets to destroy by penury the lives of millions now and in the future. The global poor who try to improve their lives by migration to richer societies risk criminal exploitation (maybe slavery and often death) at the hands of people traffickers; as well as criminalisation and imprisonment by national governments frequently responding to popular belief and extreme right-wing propaganda that it is immigration rather than free market orthodoxies and international failures in banking that are responsible for the austerity policies in force in many countries since the financial crash of 2008.

As I write, in late 2018, renewed debate about the nature of democracy has recently been sharpened in at least three countries experiencing extreme political events. In Brazil, there has been an onslaught of accusations that the impeachment of President Dilma Vana Rousseff in 2016 and the hurried criminal conviction of ex-President Luiz Inácio Lula da Silva in 2017, both of The Workers’ Party, were ill-founded in law and the result of blatant political bias. In the United States, critics appalled by a President who arbitrarily, contradictorily and repeatedly proclaims new policies via Twitter ask whether government by presidential tweet is appropriate in a democracy. In Britain, citizens faced with the threat of leaving the European Union question the democratic probity of such a very serious constitutional rupture being made on the basis of a national referendum result which, statistically, represented the will of less than half of the adults eligible to vote; and was engineered ‘by the right wing of a political movement to effect dramatic constitutional changes which they could not achieve as a self-standing political party in a standard general election’ (Grayling 2017: 11).

The immediate focus of Justice Alternatives is not upon democracy, however. It is upon the institutional terrain optimistically known as criminal justice, a body of law and assemblage of social institutions charged with the apprehension, trial and punishment of suspected and/or convicted lawbreakers. Yet, before we turn to criminal process, it is necessary to make another detour; this time to consider social inequality. For, just as it is impossible to assess the capacity of societies to adopt justice alternatives without prior consideration of the economic and political forces shaping their particular form of democratic governance so, too, is it impossible to assess, or even understand, the quality of much criminal justice outwith appreciation of the immense and widening gap between rich and poor at both national and international levels.³ Across the globe, there is still one law for the rich and another for the poor. Nonetheless, ‘the rule of law’ is as necessary an imaginary as is justice itself. The growing gap between rich and poor means that law’s rule and justice’s fairness are increasingly – and, like all imaginaries – more honoured in the breach than in the observance (Carlen 2008).

Rich law, poor law

In developed societies the main institutions and agencies implicated in the criminal processing of those accused of lawbreaking are central government, police and courts, together with the non-custodial and custodial, regulatory and penal agencies, of social work, fine enforcement, probation, parole and prisons. However, even between societies with similarly named criminal processing institutions and systems there are variations in official conceptions of justice and law-enforcement and these are occasioned by cultural, political and economic differences as well as by variations in historical development and degrees of religiosity and secularism (see, for instance, Whitman 2003; Newburn and Sparks 2004; Lacey 2008).⁴

Within secular societies, citizens’ views of the fairness of the criminal justice system are likely to be related to the experience they have had of it as defendants, crime victims or witnesses (see Anna Carline and Claire Gunby, Chapter 21; Sandra Walklate, Chaptrer 13; Sharyn Roach Anleu and Kathy Mack, Chapter 14); as well as to their views on fairness which may well stem from a mix of assumptions about natural justice, retributive justice, distributive justice and human rights. However, and as will be seen throughout this volume of chapters, in societies characterised by huge disparities of income and wealth, the concept of distributive justice⁵ is repeatedly invoked by critics of law reform attempts when they claim that it is impossible to have a just criminal process in such societies, especially when, in times of economic downturn, they employ social austerity measures designed to fall most heavily upon the poorest, rather than the wealthiest, citizens (Cooper and Whyte 2017). Questions of the relationships between social structural injustice and criminal justice thus become fundamental to any reimagining of criminal process in relation to the procedural justice regulating the apprehension, trials and punishment of lawbreakers. Just deserts arguments in relation to punishment are undermined by unmitigated economic inequality and its associated deprivations. Instances of the political insouciance of national governments presiding over social conditions and penal practices in violation of international legislation on human rights are legion (Amnesty 2018).

The two dominant and popular conceptions of justice informing the processing of lawbreakers in societies where law is based on a secular code of ethics, rather than on a religious code, are the concepts of natural justice and retributive justice. Natural justice is invoked to codify procedural justice: the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Figures
• Tables
• Contributors
• Acknowledgements
• Part 1 Imagine
• Part 2 Experiment
• Part 3 Debate
• Index